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IIP 


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X^<5l^.«u^vSrVA'V 


HARVARD  LAW  LIBRARY 


Received 


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IRISH  CHANCERY  REPORTS. 

REPORTS    OF    CASES 

ABGUED  AND  DETERMINED  IN 

THE  HIGH  COURT  OF  CHANCERY, 

Court  0f  Jppeal  in  C^anttrg, 
ROLLS  COURT, 

THE  LANDED  ESTATES  COURT, 

▲ND 

COURT  OF  BANHHUPTCY  AND  INSOLVENCY, 

IN 

IKELAND, 

DcBiNG  THE  Years  1860  and  I66I. 


Cjbanters,  antt  Court  o(  9$$e«l  fn  Cjftintrrs: 

Bt  JOHN  PITT  KENNEDY,  Esq.  WILLIAM  HICKSON,  Esq. 

Airo  LESLIE  S.  MONTGOMERY,  Esq. 

Bt  EDWARD  SHIRLEY  TREVOR,  Esq. 

%ttxioei  fftftateif  Court: 

R.  W.  MCDONNELL,  Esq.   and  ROBERT  REEVES,  Esq. 

Court  o{  )8«tdmi)itcs  snli  Sntfolbnits : 

Bt  JOHN  O'LEARY,  Esq.  and  GEORGE  CREE,  Esq. 

YOL.  XL 

DUBLIN: 
HODGES,  SMITH  &  CO.,  104  GRAFTON  STREET. 


1861. 


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/l^e .  ^at^ .  3.^-^  /r6  9 


Printed  by  Datid  Cobbbt,  11  Upper  Onnond  Quay,  DabHii. 


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^^ 


JUDGES  AND  LAW  OFFICERS, 


HIGH  COURT  OP  CHANCERY. 
Lord  Chancellor, — The  Right  Hon.  Mazdsbb  Bradt. 
Master  of  the  Rotte The  Right  Hon.  Thomas  Bebrt  Cusack  Smith. 

COURT  OF  APPEAL  IN  CHANCERY. 

The  Right  Hon.  The  Lord  Chancellor. 

Lord  Juttiee. — The  Right  Hon.  Francis  Blaokburne. 

LANDED  ESTATES  COURT. 
Judges, — The  Hon.  Mountifort  Lonofield. 

The  Hon.  Charles  James  Habobeave. 
The  Hon.  William  C.  Dobbs. 

COURT  OF  BANKRUPTCY  AND  INSOLVENCY. 
Judges, — The  Hon.  Walter  Bebwick. 
The  Hon.  David  Lynch. 

ATTORNEYS-GENERAL. 
The  Right  Hon.  John  D.  Fitzoebald,  Q.  C. 
The  Right  Hon.  Rickabd  Deast,  Q.C. 
The  Right  Hon.  Thomas  CHaoan,  Q.  C. 

SOLICITORS-GENERAL. 
Rickabd  Deasy,  Esq.,  Q.  C. 
Thomas  O'Hagan,  Esq.,  Q.  C. 
James  A.  Lawson,  Esq.,  Q.C. 

SERJEANTS. 
John  Howlet,  Esq.,  Q.  C. 
Thobcas  O'Haoan,  Esq.,  Q.  C. 
GrEBALD  Fitzoibbon,  Esq.,  Q.  C 
Jaices  a.  Lawson,  Esq.,  Q.  C. 
Edwabd  Sullivan,  Esq.,  Q.  C. 


Mbx.— In  the  Long  Vacation  of  I860,  Mr.  Serjeant  Fitzoibbon  was  appointed  Master  in 
Chancery,  in  the  room  of  A.  Ltle,  Esq. 


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X. 


Ada] 
Alto 


GOBBIGENDA. 

Page  205,  line  14  firom  top,>r  "  two  "  read  "  four."  V 

,,     309,  line  2,  for  "  there  are  two  parties,"  read  *'  there  are  not  two  parties."  Brer 

„     335,  first  line  of  second  paragraph, /)r  "  incumbered,"  read  "  unincumbered."  g 


Bon 

Cm 
Cot 
Cw 
Cot 

do 

Da] 


A    TABLE 

OF   THE 

NAMES    OF    THir   CASES    KEPORTED. 

N.B.— ^  (veriusj  always  follows  the  name  of  the  Flaintiff. 


Adams  t;  Gramble 

...269 

Delahoyd,  In  re 

...404 

Attorney-General,  Daly  v 

...    41 

DoddsrDodds 

...  374 

Attorney-Greneral  v  Evans 

...  171 

Doran  v  Carroll 

...  379 

B 

Down  and  Connor,  Bishop 

of,  V 

Barry,  Brereton  v     ... 

...    97 

Miller 

App.     1 

Brereton  v  Barry 

...    97 

Duckett  V  Gordon     ... 

...  181 

Browne  v  Coote 

...  213 

Dnndalk  and  Enniskillen  Railway 

Browne  v  Fitzpatrick 

...  213 

Company,  In  re... 

...  467 

Bnlfin  V  Danne 

...  198 

Dunne,  Bulfin  v 

...  198 

Burgess'  Trusts,  In  re 

...  164 

E 

Burmester,  In  re 

...      1 

Edgeworth's  Estate,  In  re 

293,  294 

C 

Edwards'  Estate,  In  re 

...  367 

Caffirey,  Kinsella  »    ... 

...  164 

Elliott  9  EUiott 

...  482 

Carroll,  Doran  p 

...  879 

Evans,  The  Attorney-General  t; ...  171 

Comyn's  Estate,  In  re 

...  830 

F 

Coote,  Browne  v 

...  213 

Fitzgerald  v  (yConnell 

...  437 

Courtney,  In  re 

...  410 

Fitzgerald's  Estate,  In  re 

278,  356 

Croebie,  In  re 

...  432 

Fitzpatrick,  Browne  v 

...  218 

D 

Fitzpatrick,  Watson  v 

...  213 

Daly  V  The  Attorney-General 

...    41 

Fowler  v  Lightbume 

...  495 

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TABLE  OF  CASES  REPORTED. 


G 

In  re  Houghton 

...  136 

Gamble,  Adams  v     ... 

...  269 

In  re  Humble 

...  132 

Gardiner,  In  re 

...  519 

In  re  Hunt's  Estate  ... 

...299 

Gordon ,  Duckett  v    ... 

...  181 

In  re  Jackson 

...  145 

Gray  t;  Gray 

...  218 

In  re  Jessop  and  others 

...  424 

Gray  v  Robinson 

...  205 

In  re  Johnston 

...    62 

H 

In  re  Kennedy's  Estate 

...  298 

Hammersley,  In  re   ... 

...  229 

In  re  Lanauze 

...    19 

Harding,  In  re 

...    29 

In  re  Lawder's  Estate 

...  346 

'  Harley  v  Harley 

...  451 

In  re  Lockhart 

...    68 

Harris,  Malone  v 

...    ^3 

In  re  M'Kenna 

...    65 

Homan  v  Skelton 

...    75 

In  re  Plunketf  s  Estate 

...  361 

Houghton,  In  re 

...  136 

In  re  Power's  Estate 

288,  295 

Humble,  In  re 

...  132 

In  re  Quin 

...   57 

Hunfs  Estate,  In  re  ... 

...  299 

In  re  Rathbome 

...  141 

Hutton,  Joyce  v 

...  123 

In  re  Robinson 

...  385 

1 

In  re  Roddy's  Estate 

...  369 

In  re  Burgess'  Trusts 

...  164 

In  re  Sallery 

...  236 

In  re  Burmester 

...      1 

In  re  Sanderson 

...  421 

In  re  Comyn's  Estate 

...  330 

In  re  Smith  and  Ross 

...  897 

In  re  Courtney 

...  410 

In  re  Turner's  Estate 

...  304 

In  re  Crosbie 

...  432 

J 

In  re  Delahoyd 

...  404 

Jackson,  In  re  ^ 

...  145 

In  re  Dundalk    and    Enniskillen 

Jessop  and  others.  In  re 

...  424 

Railway  Company 

...  467 

Johnston,  In  re 

...    62 

In  re  Edgeworth's  Estate 

293,  294 

Joyce  t;  Hutton 

...  123 

In  re  Edwards'  Estate 

...  367 

K 

In  re  Fitzgerald's  Estate 

278,  356 

Kennedy's  Estate,  In  re 

...  298 

Ifi  re  G-ardiner 

...  519 

Kemaghan  v  M*Nally 

...    52 

In  re  Hammersley     ... 

...  229 

Kinsella  t;  Caffrey     ... 

...  154 

In  re  Harding 

...    29 

Knox  V  Mayo 

...  265 

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TABLE  OF  CASES  REPORTED. 


m 


Q 


Lanauze,  In  re 

...    19 

Qnin,  Inre 

...    57 

Lawder's  Estate,  In  re 

...  346 

R 

Ligbtburne,  Fowler  v 

...496 

Rathbome,  In  re 

...  141 

LitUewood,  Orr  V      ... 

...  502 

Redmond,  Tobin  v    ... 

...  446 

Lockhart,  In  re 

...    68 

Rice  V  O'Connor 

...  510 

Long  V  Long 

...  252 

Robinson,  Gray  v 

...  205 

M 

Robinson,  In  re 

...  385 

McDowell,  M'Tear  v 

•••  338 

Roddy's  Estate,  In  re 

...  869 

H*Kenna,Inre 

...    65 

S 

M^allj,  Kemagban  r 

...    52 

Sallery,  In  re 

...  236 

M^ear  v  M'DoweU 

...  338 

Sanderson,  In  re 

...  421 

Malone  v  Harris 

...    33 

Scott  V  Scott 

...  114 

Martin,  Woods  p 

...  148 

Sim  V  Sim 

...  310 

Mayo,  Knox  V 

...265 

Skelton,  Homan  v     ... 

...    75 

Miller,  Bishop  of  Down  and  Con- 

Smith and  Ross,  In  re 

...  397 

nor  V 

App.      1 

Smyth,  Walcott  v     ... 

...  266 

.     N 

T 

Newton  v  Newton    ... 

...  239 

Thornton  v  Thornton 

...  474 

O 

Tobin  V  Redmond     . . . 

...  445 

O'CJonnell,  Fitzgerald  v 

...  437 

Turner's  Estate,  In  re 

...  304 

O'Connor,  Rice  v 

...  510 

W 

Orr  V  Little  wood 

...  502 

"Walcott  r  Smyth       ... 

...  266 

P 

Watson  V  Fitzpatrick 

...  213 

Flnnkett's  Estate,  In  re 

...  861 

Woods  V  Martin 

...  148 

Power's  Estate,  In  re 

288,  295 

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A  TABLE 

OP 

THE  NAMES  OF  THE  CASES  CITED. 

N.B. — V  (vertuM)  always  foQowB  the  name  of  the  Flaintiff. 


...  386 

Atkinson,  Hyde  v     ... 

...350 

Acheson  v  Fair 

...  426 

Attorney-General  v  Golding        ...    43 

Ackerdey,  Tipping  v.. . 

382,  383 

Attorney-General  v  Hurst           43,  45 

Adams  v  Jones 

...  864 

Attorney-General  v  Ironmongers 

AdamSy  Wedgwood  v... 

...  215 

Company 

43,44 

Addison  v  Bnsk 

166, 

,  160,  161 

Attorney-General  v.  Poulden       ...  438 

Adey,  Wills  v 

...  284 

Attorney-General  v  Sheffield  Gras 

Aldrich  v  Cooper 

348, 

351,  352 

Consumers  Company            ...    36 

Aldndge,  Strickland  v 

...  224 

Audsley  v  Horn       J 15, 

118,  119,  120, 

Alison  V  Furnival 

...  385 

121, 122 

Ancastcp,  The  Dnke  of,  Lord 

Tyr. 

Averajl  v  Wade 

370,  372 

connell  v 

...  100 

Ayres,  "Vicars  Choral  v 

...496 

Anderson,  White  v   ... 

...229 

[bachelor,  Bennett  v  ... 

...  142 

Andrewes  v  George  ... 

...  184 

Baggott  V  Meux 

271,  272,  276 

Andrews,  Messenger  v 

...  475 

Bailey,  Keppel  t; 

36,  38,  138 

Anster  9  Nehns 

...    55 

Bailey,  Power  v 

272,  275 

Applebee,  Be 

...247 

Baker  v  Baker 

438,  439,  442 

Appleford,  Easnm  v  ... 

...  428 

Baker  v  Gostling 

...  174 

Armagh,  Archbishop  of,  Marraj  v 

Baldwin,  Popham  v  ... 

512,516 

App.    41 

Ban  V  Bumford 

...  128 

Armstrong,  Tullettv 

271 

,  273,  275 

Ball,  Forbes  v 

...  «}4v 

Armstrong,  Williams  v 

...    49 

Balls  V  Thick 

...  457 

Arnold,  Ex  parte      *•• 

...  404 

Bantock,  Hockley  v  ••• 

199,204 

Arrowsmith,  Stupart  v 

...  314 

Bardwell,  Ex  parte   ... 

...  415 

Arrowsmith's  Trust  ... 

...  ^\jnt 

Bargeman,  Scott  v    ... 

...  156 

Amndale,  Blades  V   ... 

...  457 

Barker,  Wharton  v    ••• 

^.494 

Ascne,  Vanghan  v    ... 

App.    11 

Barkworth  v  Toung 

188, 191, 192, 

Asl^town,  Lord,  Cosby  v 

476,  480 

193,194 

Atkinson,  Bernasconi  v 

362,  364 

Barlow  v  Osborne     ... 

...230 

1 

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TABLE  OF  CASES  CITED. 


Barnes  v  Racster     346,  348,  349,  350, 
351,  352,  353,  354,  355 


Barnbart  v  Greenshields 

Barrett  9  Hajter 

Barron  v  Barron 

Barron,  Honsin  v 

Barry,  Brereton  v     ... 

Barton  v  Barton 

Barton,  Major  v 

Barwell,  Wyatt  v 

Bateman,  Doe  d.  Freeman  v 

Batwell,  Massy  v 

Beaumont  v  Fell 

Beaumont  v  The  Marquis  of  Salis- 
bury 

Beck  t;  Bum 

Bedford,  The  Duke  of,  v  Trustees 
of  British  Museum 

Beech  t;  Jones 

Beeton,  Ex  parte 

Bell  V  Hyde 

Bell  V  Jackson 

Bell,  Scott  V 

Bell,  Tindall  v 

Bellamy  v  Sabine 

Bennett  V  Bachelor   ••. 

Bennett  v  Bernard    ..< 

Bennett,  Bullock  v    ... 

Bennett  v  Marshall  ... 

Bentley,  Sherratt  v   ... 

Benyon  v  Maddison    ., 

Bernard,  Bennett  v  ... 

Bernard  v  MinshuU  ... 

Bemasconi  v  Atkinson 

Berry  v  Berry 

Biel,  Hammersley  v  ... 

Biggs,  Sadlier  v 

Biggs  V  Ward 

Bignold,  Bugden  v    . . 

Bignold  V  Giles 

BingHam,  Duke  of  Portland  v,  Jfp.  13 

Bingham,  Goodhill  v...  ...  271 

JBion,  James  v  ...  ...  495 


511 
47 
229 
457 
98 
481 
174 
516 
307 
100 
362 

495 

485 


...  138 
...  58 
...  415 
...  275 
...  844 

123,  130 
...  58 
...  268 
...  142 
...  268 
...490 
...  362 

426,  428 

...  494 

...  268 

219,  223,  227 

362,  364 
...  165 
...  189 
...  32 
...  218 
...350 

206,  211 


Birch  V  Wade 

...  340 

Birkhead,  Doe  d.  Clift  v 

...  156 

Bishop,  Cox  t; 

...  446 

Bishop,  Davenport  9... 

130,  196 

Bishop,  Grace  v        .^ 

...  404 

Black,  Willis  V 

183,  190 

Blackford  v  Long 

...  426 

Blackmore  9  Ince 

...  339 

Blackstone,  Ex  parte... 

...  410 

Blackwell  v  England 

283,  290 

Blades  v  Arundale     ... 

...  457 

Blagrave  v  Routh      ... 

325,  326 

Blake,  Darcy  v 

...    54 

Blake  v  French 

...  123 

Blakely  v  Smith 

...511 

Bliss,  Dean  of  Ely  v  ... 

305,  308 

Bliss  V  Woods 

Jpp.    11 

Bloomfield,  Daly  v     ... 

...  305 

Blundell,  Camoys  v   ... 

862,  365 

Boddington,  Witts  v ... 

...  340 

Boles,  Brandon  v 

199,  203,  204 

Bolton,  Brennan  v    ... 

...  512 

Bolton,  Townly  v 

...206 

Bonnaker  v  Evans    ... 

App.    38 

Bott,  Lawes  v 

...    68 

Bourke  v  Murray 

...   67 

Bourne,  Dawson  v    ... 

...  120 

Boutell,  Boublat  t;    ... 

...  290 

Bouverie  t;  Bouverie... 

...  484 

Bowman  t;  Taylor     ... 

...    55 

Bowyer,  Curre  v 

...  496 

Boyd  V  Robins 

...    60 

Boyd  V  Bobinson 

...    59 

Boyse  v  Cotelough    ... 

...  387 

Bradbury,  Ex  parte  ... 

...  440 

Bradford,  Buffar  v    ... 

...  115 

Bradford  v  Roulston  ... 

...511 

BradshAw  v  Bradshaw 

862,  364 

Bradstreet,  Shannon  v 

...  517 

Brady  v  Fitzgerald    ... 

174,  178,  446, 

447,  451 

Brady,  Nelson  v 

213,  216 

Brandon  v  Boles 

192,  203,  204 

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TABLE  OF  CASES  CITED. 


m 


Branham  v  Ringrose 

...  484 

Brathwaity  Lampleigh  v 

...    58 

Brawn,  Doe  v 

...  456 

Breaiy,  Boundell  v   ... 

...  132 

Brennan  v  Bolton     ... 

...  512 

Brereton  v  Barry 

...    98 

Bretz,  Fickard  v 

...  359 

Briggs  V  Penny 

219,  226,  426 

Brisick  v  Manners     ••• 

199,  204 

British  Museum,  Trustees  of,  The 

Duke  of  Bedford  v 

...  138 

Britton  v  Twig 

...  375 

Brook,  Cobbett  v      ... 

...    16 

Brown,  Grreville  v     ... 

...    26 

Brown  v  Higgs 

...  840 

Brown  v  The  Marquis  of  Sligo    ...    79 

Browne  t;  Coote  and  others          ...  215 

Browne,  Doe  v 

...  464 

Browne  v  Fitzpatrick  and  others      214 

Browne,  Potts  v 

...  386 

Browne,  Probyn  v     ... 

...  385 

Browne  v  Spenoe 

App.  27,  28 

Browne's  Trusts 

...  426 

Brownrigg,  Campbell  v 

...  389 

Bruce,  Ex  parte 

199,  200,  204 

Buchanan,  Smith  v   ... 

...  885 

Buck,  StronghiU  v    ... 

...  100 

Buffur  V  Bradford     ... 

...  115 

Bugden  v  Bignold     ... 

...  350 

BuDer,  Carpenter  v    .. 

...  100 

Bullock  V  Bennett     ... 

...  490 

Bulteel,  Ex  parte      ... 

200,  203 

Bumford,  Ball  v 

...  128 

Burke  a  minor,  In  re 

...    27 

Burke,  OTay  v 

...  109 

Bum,  Beck  v 

...  485 

Burnett,  M'Donnell  v 

...  259 

Burrough  v  Philcox  ... 

...  340 

Burton  v  Fitzsimon  ... 

...259 

Bushby,  Stockdale  v 

...  362 

Bushell  V  Bushell      ... 

...  280 

Busk,  Addison  v 

156,  160,  161 

Busk,  Lee  o 

160,  162 

Bustard  V  Saunders  ...  ...  115 

Bute,  Marquis  of,  v  Conyngham  ...  439 
Butler  V  Portarlington  96,  259 

Butterfield  V  Heath  ...  ...123 

Cadogan,  Wright  v  ...  ...  272 

CalcraftvWest        ...  ...    40 

Callender,  Wright  v  ...  439 

Cammell  v  Sewell     ...  ...  387 

Camoys  v  Blundell    ...  362,  365 

Campbell  v  Brownrigg  ...  339 

Campbell,  Smith  v    ...  ...  362 

Canterbury,    Archbishop   of,   and 
Bishop  of  London,  The  King  v 

App.  41 
Carberry  v  Cox        ...  48, 46 

Carey,  Creed  v         ...  ...  132 

Carlisle,  The  Earl  of,  Lechmere  v    132 
Carpenter  V  BuUer    ...  ...  100 

Carr,  HoUis  v  ...  ...  183 

Carr  v  Marsh  ...  App.  86 

Carter,  Parker «       ...  ...  123 

Cartwright,  Doyne  v  ...  156 

Casamajor  v  Pearson  ...  439 

Casselis,  Kennedy  v  ...  ...  886 

Cassidy,  Ex  parte     ...  410,  411 

CatoroCator  ...  ...115 

Caulfield,  Ex  parte    ...  413,416 

Chambers,  Gates  v   ...        App.  23,  29 
Chambers  v  Goldwin  825,  326 

Chaplin  v  Chaplin    ...  ...  142 

Chapman,  Maddison  v  ...  426 

Charlesworth,  Malcolms  v  ...  268 

Charlton,  Doe  d.  Burren  v  ...  376 

Charlton  v  Driver     ...  ...  503 

Chinnery,  Muskerry  v  ...  130 

Chitty,  Williams  v    ...  143,  144 

Cholmondeley,  Fitzgerald  «  314 

Cholmondeley,  Pitt  v  ...326 

Cholmondely,  Walpole  v  ...  247 

ChurchiU  V  Dibben   ...  270,273 

Clarendon,  M'Auley  v  ...  219 

Clarke,  Dawson  v     ...  219,  227 

Clarke,  Mason  «       ...     1 16,  1 16,  121 


Digitized  by 


Google 


ir 


tabu:  of  cases  cited. 


79 
230 


43,47 
...  123 
...227 
...  16 
...485 
...387 
...  456 
456,  457t  ^6b 
...  404 
...  518 
165,  169 
...  86 
...  130 
...496 
••.  58 
268,  269 


Clarke  v  Moore 
Cleghom,  Moore  v   .< 
Clements,  Scott  v 
(Sergy  Society,  In  re 
Clerk  V  Nettleship    .. 
.  Clowea,  Russell  v 
Cobbett  V  Brook 
Cock,  Matchwick  V   . 
Coldoagh,  Boyse  «   . 
G^  Taylor  v 
Coleman  v  BawUnson 
Collard,  Lewis  « 
Collen  9  Gmrdiner 
CoUetOQ  V  Grarth 
Collios  V  Plumb 
OoDyear  v  Mulgrave 
Oolmore  9  Tyodall   . 
Oompion,  Smith  o 
Condon,  Walcott  v    . 
Con^,  Smith  v 
Conyngham,  Marquis  of  Bute  v  ...  439 
Cooke,  Idle  v  ...  ...  376 

Cooke,  Norris  v        •..  «..  511 

Cooper,  Aldrich  p     ...     348,  351,  352 
Copier  9  Cooper       ...  ...  426 

Cooper,  Sparrow  «...  .^..  138 

Ooote  and  others,  Browse  «        ...  215 
Coj^er-miners  Company,  Wood  v    183 
Coppin,  Dillon  V       ...  ...189 

Corbett's  Trusts,  Be  ...  843 

GomwaU,  In  re        ...  ...  350 

Cosby  V  Lord  Arirtown  476,  480 

Coventry  v  Coventry  ...  132 

CoKV  Bishop  ...  *..  446 

Oox,  Carberry  v       ...  48, 46 

Cox,  Qrigbyr    .      ...  271,275 

Cox,  Hewer  v  ...  ...  359 

CoK,Woodo  ...  ...219 

Crawford,  Gray  v     ...  ...  213 

Ckawford  v  Trotter   ...  116,  120 

Creed*  Carey  ...  ...132 

Creed,  Schreier  v     ...  ...    35 

Cranan  «  Hawkes     174,  446,  447,  451 


Creswick  v  Bokeby   ...  App.  25,  29 

Crockett  v  Crockett  ...  115,  120,  121 

Crofts  V  Feuge          •••  132,  135 

Crosbie,  Gilman  v    ...  ...  511 

Crosbie  v  Murphy    281,  290,  358,  898, 

399 

Crosbie,  Stoughton  v  99,  100,  512 

Crosbie,  Sugrue  v     ...  ...  305 

Crossling  v  Crossling  ...  340 

Crowley's  case          ...  ...  415 

Cnlliford,  Westcott  tr  ...  184 

Cumming,  In  re         ...  432, 435 

Carre  v  Bowyer        ...  ...  496 

Carrie  v  Nind           ...  ...  128 

Curtis  V  Curds          ...  •••    54 

Curtis,  Johnson  v      ...  314,  324 

Curtis  V  Price           ...  ...  495 

Custance,  Holmes  v  ...  ...  362 

Daly  V  Bloomfield     ...  ...  805 

Darbon  v  Rickards    ...  ...  439 

Darcy  v  Blake           ...  ...    54 

Darthez  v  Lee           ...  ...  315 

Davenport  v  Bishop  1 30,  196 

Davis  V  G^u'diner      ...  ...    25 

Davis  V  Hone            ...  ...  503 

Davis,  Selkrig  v  385,  887,  391 

Davoren,  Day  t;        ...  ...  430 

Dawding,  Bippon  v  ... .  ...  272 

Dawson  v  Bourne     ...  •••  120 

Dawson  v  Clarke      ...  219,  227 

Dawson  v  Dawson     ...  314,  824 

Dawson,  Stocken  v   ...  ..,  509 

Day  V  Davoren          ...  ...  480 

Dean,  Stocker  v        ...  ...  138 

Deane,  Rex  v           ...  .«.  456 

Dedue,  Fremoult  v   ...  132,  134 

Delmare  v  Bobello    ...  ...  362 

De  Medina  t;  Grove  ...  ...  387 

De  Mdeyns,  Joyce  v  ...    17 
Denison,  Druce  v      165, 169,  170, 171 

De  Bode,  Re             ...  ...  247 

De  Vitre,  Jeflfrey  v  116,  120,  121 
Devondnre,  Duke  of,  v  Eglin       35,  37 


Digitized  by 


Google 


TABLE  OF  CASES  CITED. 


De  Witte  o  De  Witte 

...  115 

Doffield  V  Doffield     ... 

...    4sf4 

DibbeD,  Churchill  v  ... 

207,  273 

Duignan,  Harrison  v... 

...  447 

Diggee,  Flock  v 

174 

,  305,  807 

Dummer  v  Pitcher    . . . 

...  476 

Dillpn  V  Coppin 

...  476 

Dunbar  t;  Tredennick 

...  100 

DUlon,  Hodflon  v 

App. 

36,  37,  39 

Dunn,  Maclean  v 

...511 

Dillon  «  Parker 

...  476 

Dwyer,  Trant  v 

...    79 

Ditchfield,  Francis  « ... 

...  428 

Easum  v  Appleford   ... 

...  428 

Dodd,  Hine  v 

...  512 

Edge  V  Worthington... 

199,  203,  204 

Dodgson,  Johnson  v  ... 

...511 

Edmeades,  Pearce  v  ... 

...206 

Doe  V  Brawn 

.;.  456 

Edmonds,  Proeser  v  ... 

...    92 

Doe  V  Browne 

...464 

Egan  V  Morris 

...  164 

Doe  V  Douston           ...  456, 464 

Dee  V  Huthwaite       ...  364,  365 

Doe  V  Jones               ...  •••  464 

Doe  V  Laming           ...  ...  375 

Doe « Milborne         ...  ...101 

Doe  V  Bawlings        ...  ...    94 

Doe  o  Wilton            ...  ...  164 

Doe  d.  Baoiford  V  Hayky  ...138 

Doe  d.  Burren  v  Charlton  ...  875 

Doe  d.  Burton  «  White  ...484 

Doe  d.  Clift  v  Birkbead  ...  156 

Doe  d.  Freeman  v  Bateman  ...  807 

Doe  d.  Grains  9  Rouse  ...362 

Doe  d.  Phillips  v  Bawlings  •••    80 

Doe  d.  Phipps  v  Boiling  ...  259 

Doe  d.  Stephens  v  Scott  271,  275 
Doe  d.  Westmoreland  v  Smith     ...  456 

Doaner  t;  Fortescue  ...  ...    54 

Dorrton,  Holliday  v  ...  ...  229 

Douglas,  Hardwicke  v  426,  431 

Douglas,  WiUis  v      ...  ...  206 

Douston,  Doe  v         ...  456, 464 

Down  V  Down           ...  ...  496 

DowDiog,  Ex  parte   •••  ...  410 

Doyne  v  Cartwright ...  ...  156 

Drew  9  Eellick          ...  ...  206 

Drew  V  Lord  Norbury  519,  520 

Drew  9  Power          ...  314, 325 

Driller,  .Charlton  V    ...  ...508 

Druce  9  Denison       165,  169,  170,  171 

Dnice,  Reimers  9      ...  •••  886 

Drury,  Williams  9    ...  ,..  404 


Eglin,  Duke  of  Devonshire  9        35,  37 

Elcock,  Mapp  9         ...  ...  227 

EUis,  Grant  9            ...  804, 306 

Ellis,  Knight  9          ...  ...  375 

Eij,  Dean  of,  v  Bliss...  305,  398 

Emery «  Mucklow     ...  ...    68 

England,  Blackwell  9...  283,  290 

Evans,  Bonnaker  9   ...  -^^PP'    38 

Evans,  Johnson  «      ...  ...  457 

Evans  9  Bees            ...  ...  415 

Exeter,  The  Bishop  of,  Southcome  9 

79,  80 

Ex  parte  Arnold        ...  ...  404 

Ex  parte  Bardwell     ...  ...  415 

Ex  parte  Beeton        ...  ...  414 

Ex  parte  Blackstone  ..*  ...  410 

Ex  parte  Bradbury   ...  ...  410 

Ex  parte  Bruce        ...  199,  200,  204 

Ex  parte  Bulteel       ...  200,  208 

Ex  parte  Cassidy       ...  410,  411 

Ex  parte  Caulfield    ...  413,  415 

Ex  parte  Downing    ...  ...  410 

Ex  parte  Fitzhenry   ...  ...  410 

Ex  parte  Hickie        ...  ...  410 

Ex  parte  Hooper      ...  199,  203,  204 

Ex  purte  Isaac          ...  •••  414 

Ex  parte  Kendall      ...  ...  848 

Ex  parte  Langhome ...  ...  414 

Ex  parte  Lee            ...  ...  410 

Ex  parte  Legge         ...  412, 414 

Ex  purte  M'Gee        ...  ...  415 

Ex  parte  Martin        ...  ...  410 


Digitized  by 


Google 


VI 


TABLE  OF  CASES  CITED. 


Ex  parte  MiUer        ...      413,  414,  415 
Ez  parte  Nolan         ...  ...  413 

Ex  parte  OUver         ...     410,412,415 
Ex  parte    Pearse    and  Protheroe 

199,  203,  204 
Ex  parte  Bamsden     ...  ...  440 

Ex  parte  Rogers       ...     160,  161,  162 
Ex  parte  Stokes        ...  ...  415 

Ex  parte  Yogel         ...  ...  414 

Ex  parte  Ward  ...  ...  410 

Eyre  v  Marsden        ...  ...  340 

Eyre  v  Monro  ...  184,  191 

Fair,  Acheson  v        ...  ...  426 

Farmer  v  Mills  ...  ...  439 

Farrell  v  Hildridge    ...  ...  184 

Fell,  Beaumont  v      ...  ...  362 

Feltham's  Trusts,  In  re     862, 366,  367 
Ferrall,  In  re  ...  ...  290 

Fenge,  Crofts  v         ...  132,  135 

Field  V  Moore  ...  ...  271 

Finch  V  Harris  ...  4/^*    ^^ 

Findon  v  Findon       ...  ...  339 

Fisher  v  Fisher         ...  143,  145 

Fitzgerald,  Brady  v  »  174,   178,  446, 

447,  451 
Fitzgerald  v  Cholmondeley  ...  314 

Fitzgerald  v  O'Connell  ...  259 

Fitzgerald,  Be  ...  ...  358 

Fitzgerald's  Estate,  In  re  290,  294 

Fitzhenry,  Ex  parte  ...  ...  410 

Fitzmaurice  v  Sadlier  99,  123 

Fitzpatrick  &  others,  Browne  v    ...  214 
Fitzpatrick,  Enaresboroagh  v      ...  426 
Fitzpatrick,  Watson  v  ...  215 

Fitzsimon,  Burton  v  ...  ...  259 

Flack,  Owen  v  ...  ...  495 

Florence,  Taplin  v    ...  ...    39 

Flnester  t;  M'Clennan  ...  404 

Fonblangue  t;  Lee     281,  282,  286,  859 
Forbes  v  Ball  ...  ...  340 

Forbes,  Jackson  t;      ...  ...  340 

Fortescne,  Dormer  v  .••  ...    54 

Foxley'scase  ...  ...414 


Francis  v  Ditchfield  ... 

...  428 

Frankfort  V  Thorpe  ... 

...  503 

Freeland  v  Neal 

Jpp.  36,  88 

Fremoult  v  Dedire    ... 

132,  134 

French,  Blake  V 

...  123 

French  r  French 

...  116 

Froggart,  Sacheverell  v 

...  137 

FuUbrooke,  Hill  e     ... 

...  265 

Furnival,  Alison  v    ... 

...385 

Garcias,  Ricardo  v    ... 

...  387 

Gardiner,  CoUen  v    ... 

...518 

Gardiner,  Davis  v    ... 

...    25 

Gardiner,  Stringer  v.. . 

...  362 

Gardiner  v  Townsend 

...  132 

Garrard  v  Tuck 

...    55 

Garratt  v  Niblock     ... 

...  485 

Garth,  Colleton  v 

166,  169 

Gastrel «  Jones 

Jpp.    11 

Crates  V  Chambers     ... 

App.  23,  29 

Geddington,  The  King  v 

...  517 

Geering,  Weatherall  v 

...  137 

Geoi'ge,  Andre wes  v  ... 

...  184 

Gibson  v  Seagrim 

348,  351 

Gibson,  Whatman  v    ... 

35,  138 

Giles,  Bignold  v 

206,211 

Giles  V  Grover 

...  457 

Oilman  v  Crosbie 

...  511 

Gladstone,  Office  v         App.  36,  38,  39 

Glazier,  Goodrigh t v...  ...  247 

Glynn,  Harding  v     ...  ...  340 

Gt>dolphin,  Marlborough  v  ...  840 

Gxklson,  Holmes  v    ...  ...  481 

Godson  V  Sanctuary ...  ...  457 

Gliding,  Attorney-General  v  ...    43 

Gx>ldwin,  Chambers  v  325,  826 

Grolton  V  Handcock    ...  ...142 

Gomme,  Hill  e          ...  ...  130 

Gompertz  v  Gompertz  840,  343 

Goodhill  V  Bingham  ...  ...  271 

Groodlittle,  d.  Peake  v  Pegden      ...  375 

G-oodright  v  Glazier ...  ...  247 

Goodright  v  Moses    ...  ...  123 

Gtx)dyear,  In  re        ...  ...  357 


Digitized  by 


Google 


TABLE  OF  CASES  CITED. 


Vll 


Grordon  v  Whieldon 
Gronnan,  Hill  v 
Gorman,  Taylor  v 
GosUing,  Baker  v 
Grough,  Osborne  v 
Grace  v  Bishop 


...  115 

...  130 

213,  216 

...  174 

...  284 
...  404 


Granbj,  Marquis  of,  Earl  of  Nor- 
thumberland V   ...  ...  475 

Grant  e  Ellis             ...  304,  306 

Grares  v  Holland      •••  ...  156 

Gray  v  Crawford      ...  ...  213 

Gray  v  Minnethorpe  ...  ...  814 

Gray  v  Pearson         21 1,  212,  442,  492 

Gray,  Ward  v           115,  118,  121,  122 

Greenshields,  Bamhart  v  •••611 

Gregg,  Office  v        ...  App.  36,  38 

Gregory,  M*CiiUoch  v  496,  601 

Greville  v  Brown      ...  ...    26 

GrigbyrCox            ...  271,276 

Grove,  De  Medina  v  ...  ...  887 

Grover,  Giles  v         ...  ...  467 

Gummoe  v  Howes    ...  ...  376 

Gurly  V  Gurly          ...  165,  170,  171 

Gurly,  Morgan  v       ...  79,  80,  96 

.  Hadland's  case           ...  ...  415 

Halbard,  In  re          ...  332, 336 

Hall,  Johnston  v       ...  ...  382 

Hall  V  Roche             ...  ...  467 

Hamilton  v  Hamilton  ...  449 

Hamilton  v  Haughton  ...  447 

Hamilton,  Nixon  v   ...  ...    99 

Hamilton  v  Eoyse     ...  ...  512 

Hammersley  v  Biel   ...  ...  189 

Hams,  In  re              ...  389, 408 

Handcock,  Golton  v  ...  ...  142 

Handcock  v  Handcock  370,  371,  372 

Hannyngton,  Wilcox  v  ...  271 

Harding  v  Glynn      ...  ...  340 

Hardwicke  v  Douglas  426,  431 

Hardwicke,  Lord,  v  Vernon  ...  814 

Harris,  Finch  e         ...  Jpp.    36 

Harris,  Hethergill  v  ...  ...  486 

Harris  v  Mott            ...  271,  274 


Harrison  v  Duignan  ...  ...  447 

Harrison  v  Lawford  ...  ...  404 

Hartfort,  In  re          ...  99,  100 

Hartley  v  OTlaherty  370,  378 

Haslope  v  Thome      ...  282,  283 

Hassard,  Newcomen  v  271,  274 

Haughton,  Hamilton  v  ...  447 

Hawker,  Wickham  v...  •••    39 
Hawkes,  Cremen  v    174,  446,  447,  461 

Hawksbee  v  Hawksbee  ...    55 

Hayley,  Doe  d.  Bainford  v  ...  138 

Hayley,  Boe  v           ...  ...    79 

Haylin,  Taylor  v       ...  ...  326 

Hayter,  Barrett  v      ...  ...    47 

Hayter  t;  Tregoe       ...  •••    43 
Headford,  Marqnb  of,  Yanghan  v    116 

Heap  V  Tongue         ...  ...  123 

Heaphy  v  Hill           ...  79,  80,  96 

Heath,  Buttterfield  v  ...  123 

Heath  v  Perry           ...  ...  206 

Helps,  Manning  v     ...  ...  306 

Heneage,  Meredith  v ...  ...  218 

Hertford,  Marquis  of,  v  Zichi       ...  197 

Hervey  v  Hervey      ...  ...    99 

Hethergill «  Harris   ...  ...486 

Heveningham  v  Heveningham    ...  360 

Hewer  v  Cox            ...  ...  859 

Hewson  v  Myers       ...  ...  130 

Hickie,  Ex  parte       ...  ...  410 

Higgs,  Brown  v        ...    •  ...  340 

Hildridge,  Farrell  v  ...  ...  184 

Hill  V  Fullbrooke      ...  ...  265 

Hill  V  Gromme           ...  ...  180 

HillvGrorman           ...  ...180 

Hill,  Heaphy  v          ...  79,  80,  96 

Hillary  v  Waller       ...  ...  447 

Hillcoat,  Moisey  9     ...  j^.    11 
Hinds,  Martin  v        ...         App.  30,  88 

HinevDodd              ...  ...612 

Hockley  v  Bantock    ...  199,  204 

Hodder,  Shannon  v  ...  ...  305 

Hodges,  Wilson  v      ...  ...  449 

Hodgson  V  Hutchinson  ...  183 


Digitized  by 


Google 


Tin 


TABLE  OF  CASES  CITED. 


Hodson  V  Dillon             -^^^^ 

36,  37,  39 

In  re  Ferrall 

... 

...  290 

Holland,  Graves  v     ... 

...  156 

In  re  Fitzgerald's  Estate 

290,294 

Hdliday  v  Dorrton    ... 

...229 

In  re  Goodyear 

... 

...  357 

Hollis  V  Carr 

...  183 

In  re  Halburd 

... 

332,335 

Holntes  t;  Castance    . . . 

...  362 

In  re  Hams 

... 

898,  403 

Holmes  v  Godson 

...  481 

In  re  Hartfort 

... 

99,  100 

Holmes  v  Bemnon     ••• 

...  Soi 

In  re  Hughes 

... 

...  332 

Holmes,  Swan  v 

...  206 

In  re  Kelly 

... 

19,26 

Hdt  V  Holt 

...  100 

In  re  Keilly 

... 

348,  350 

Hone,  Davis  V 

...  503 

In  re  Keen 

... 

70,71 

Hooper,  Ex  parte      ... 

199, 

,  203,  204 

In  re  Lord 

... 

...  410 

Horn,  Aadsley  v      115, 

118, 

119.120, 

In  re  Low's  Estate 

... 

...268 

121,  122 

In  re  M'Netle 

... 

77,  82,  84 

Horner^  Mayor  of  Kingston-! 

upon- 

In  re  Nolan 

... 

...410 

UuMv 

...  447 

In  re  Philips 

... 

...525 

Honsin  «  Barron 

...  457 

In  re  Pj11« 

... 

.^414 

How,  Jones  v 

183,  192,  193 

In  re  Bogers 

... 

...  422 

Howes,  Gummoe  v    ... 

...  875 

la  re  Smith  and  Ross 

357,  360 

Hoyte  V  Thompson    ... 

386,  387 

In  re  Stokes 

... 

...  414 

Hubbard  t;  Ljster     ... 

...    15 

In  re  Tipping's  Estate 

...  174 

Hughes,  In  re 

...332 

In  re  Wynch's  Trusts 

...  375 

Hughes,  Whitehead  v 

...    68 

Ironmongers  Company,  Attorney- 

Hulme  V  Hulme 

...339 

General  v 

... 

43,44 

Hulme  V  Tennant     ... 

...  375 

Irving  V  Toung 

... 

...  314 

Hunt,  Pfeilitzer  v     •.. 

...299 

Isaac,  Ex  parte 

... 

...  414 

Hunter  v  Kennedy    ... 

...268 

Isaac,  Richard  v 

... 

...290 

Hunter,  Phillips  v    ... 

...387 

Jack  V  M^Intyre 

... 

...496 

Hunter  v  Potts 

385,387 

Jack  V  M*Loughlen 

... 

...305 

Hurst,  Attorney-Genera] 

[v 

43,45 

Jackson,  Bell  v 

... 

...  344 

Hutchinson,  Hodgson  v 

...  183 

Jackson  v  Forbes 

... 

...  340 

Huthwaite,  Doe  V     ... 

364,365 

Jackson  v  Roe 

•  a. 

...    15 

Hyde  v  Atkinson 

...350 

Jackson,  Russell  v 

... 

219,  224,  227 

Hyde,  Bell  v 

...  275 

Jackson  v  Saunders 

...  259 

Hyde  t;  Skinner 

...    79 

James  v  Bion 

... 

...  495 

Idle  V  Cooke 

...  375 

James'  case 

... 

...  415 

Inoe,  Blackmore  v    ... 

...  339 

James,  Locke  v 

... 

...  247 

Ince,  Parker  V 

...    61 

James  v  Rice 

... 

...  199 

Incorporated  Society,  Shiel  v 

...  305 

James  v  Salter 

... 

305,306 

In  re  Burke  a  minor 

...    27 

Jeffrey  v  De  Vitre 

... 

116,  120,  121 

In  re  Clergy  Society 

43,47 

Jeffreys,  Walker  v 

... 

*  79,95 

In  re  Cornwall 

...  350 

Jeffrys  9  Jeffrys 

... 

...  129 

In  re  Cumming 

432,  435 

Jennings  v  Ward 

... 

...368 

In  re  Feltham's  Trusts 

362,  366,  367  1 

Jesson  V  Wright 

... 

375,  376 

Digitized  by 


Google 


TABLE  OF  CASES  CITED. 


IX 


Johnson  t;  Curtis 

314,  324 

Johnson  v  Dodgson   ... 

...511 

Johnscm  v  Evans 

...  457 

Johnston  v  Hall 

...  382 

Johnston  v  Webster  ... 

...  520 

Joliand  V  Stainbridge 

...  512 

Jones,  Adams  v 

...364 

Jones,  Beech  v 

...    58 

Jones,  Doe  v 

...  464 

Jones,  Gastrel  V 

Aj^.  li 

Jones  V  How 

183,  192,  198 

Jones  V  Jones 

...  603 

Jones  9  Kearney 

80,229 

Jones  V  Martin 

184, 191,  198 

Jones  9  Randall 

...206 

Jones  V  Smith 

...611 

Joyce  V  De  Moleyns 

...    17 

Ealloway,  Short  v    ... 

...       do 

Kay  V  Kay 

...  206 

Keane,  Momington  v 

...  229 

Kearney,  Jones  v      — 

80,229 

Kelly,  Be 

348,  850 

Keity,  Wright « 

...  214 

KeiUi,  Trebec  » 

Jpp.96 

Kellick,  Drew  v 

...206 

Kelly,  In  re 

19,26 

Kelly  •  KeUy 

28,  29,  214 

Kendall,  Ex  parte    ... 

...  348 

Kennedy  V  Casselis  ... 

...  886 

Kennedy,  Hunter  •  ... 

...268 

Kennedy  v  Kingston 

...  340 

Kent  V  Stoney 

...    80 

Keen,  In  re    . 

70,71 

Keppel  V  Bailey 

36,  88, 138 

K^  V  Williams 

199,204 

Sadd,  Milliken  v       ... 

...  123 

King,  Sarory  « 

...108 

King,  The,  v  Archbbhop  of  Canter- 
bury and  Bishop  of  London  idlpp.  41 
King,  The,  v  Geddington  ...  517 

King,  The,  V  Long  Berrington     ...517 
King,  The,  v  Toddington  «..  517 

Cngston,  Kennedy  v  ...  340 


Kingston-upon-HuU,  Mayor  of,  v 
Homer  ...  ...  447 

Kingston's,  Duchess  of,  case        ...  386 
Ejrke  v  Kirke  ...  ...  247 

Kirkman's  Trusts      ...  ...  494 

Knaresborough  v  Fitzpatrick       ...  426 
KnatchbuU,  Woodgate  v  ...  456 

Knight  V  Ellis  ...  ...  375 

Knight  V  Knight       ...  ...  218 

Knox,  Wood  v  ...  ...  259 

Lainson  v  Lainson     ...  ...  206 

Lambert  v  Lambert  ...  ...  382 

Laming,  Doe  v  ...  ...  375 

Lampleigh  v  Braithwait  ...    58 

Lanauze  t;  Malone    ...  ^..    24 

Lane  V  Page  ...  ...100 

Langham  t;  Sanford  ...  426 

Langhome,  Ex  parte  ...  414 

Langhome's  case      ...  410, 418 

Langley  v  Thomas 430 

Lansley,  Major  v      ...  ...  272 

Lassenoe  v  Tiemey  271,  339|  340,  342 
Law  V  Warren  ...  ...  123 

Lawes  v  Bott  ...  ...    68 

Lawford,  Harrison  v  ...  404 

Leadbitter,  Wood  v  ...  85,  38,  89 

Leak,  Melling  v        ...  ...    55 

Leake  v  Robinson    ...  ...  494 

Leapingwell,  Page  v  •••    49 

Lechmere  v  Earl  of  Carlisle        ...  132 
Lee  V  Busk  ...  160,  162 

Lee,Darthe2v         ...  ...315 

Lee,  Ex  parte  ...  ...410 

Lee,  Fonblanque  v    281,  282,  286,  359 
Leeming  v  Sherratt  ...  ...  840 

Lees  V  Massy  ...  ...  494 

Legge,  Ex  parte       ...  412,  414 

Le  Neve  v  Le  Neye  ...  •••  611 

Lewis  V  Collard        •••  •*•  404 

Lewis  V  Peake  •••  58, 59 

Lewis  V  Bees  496,  497,  498,  601 

Lewis  and  another  «  Smith  &  Boss     $99 
Lichfield,  Ubich  V    ...  4M,  42d 


Digitized  by 


Google 


TABLE  OF  CASES  CITED. 


LidwoU,  £oe  v  ...  ...  496 

Lightbome  v  WEyoj  ...    99 

LillvLiU  ...  ...206 

Lister,  liddv  ...  ...350 

Llojd,  Pennell  v       ...  •..  387 

Locke  V  James  ••.  ...  247 

Logan  V  Wienholt    ...  184,  190 

Long  BerringtOD,  The  Ejog  v     ...  617 
Long,  Blachford  v    ...  ...  426 

Long  V  Long      94,  256,  257,  258,  262, 

263 
Lord,  Li  re  ...  ,..  410 

liOscombe  v  Winteringham  43,  48 

Loveday's  case  432,  438,  435,  436 

Lovegrove,  Parr  v    ...  ...  496 

Lovegrove,  Smith  v  ...        App.  36,  37 
Low's  Estate  ...  ...  268 

Lncas,  WUliams  v    ...  ...  132 

Lyle  V  Earl  of  Yarborough  ...  496 

Lymberry,  Mason  v  ...  ...  340 

Lyne  v  Lyne  ...  ...  265 

Lyster,  Hubbard  t;    ...  ...    16 

M'Anley  v  Ckrendon  ...  219 

ATClennan,  Fluester  v  ...  404 

M'Clintock,  Walpole  v  ...  520 

M'Cttlloch  V  €rregory  496,  501 

HODermot  v  Wallace  ...  206 

M'Dermott,  Peyton  v  ...  216 

McDonnell  v  Burnett  ...  259 

McDowell  V  Wheatley    281,  282,  286, 

290,  291,  293,  358,  397,  398,  399, 

400 
M'Evoy,  Lightbume  v  ...    99 

M'Gee,  Ex  parte      ...  ...  416 

M'Lityre,  Jack  v      ...  ...  496 

M*Loughlen,  Jack  v  ...  306 

M*Neale,  Li  re         ...  77,  82,  84 

Maclean  9  Dunn       ...  ...511 

Maddison,  Benyon  v  ...  494 

Maddison  v  Chapman  ...  426 

Hagee  9  Townsend  ...  ...  339 

M^or  p  Barton        ...  ...  174 

ffajor  1^  Lansley       ...  ...272 


Malcolms  v  Charlesworth  ...  268 

Malone,  Lanauze  v    ...  ...    24 

Mann  v  Stephens      ...  35,  138 

Manners,  Brisick  v    ...  199,  204 

Manning  V  Helps      ...  ...305 

Maples  V  Pepper       ...  ...    58 

Mapp  V  Elcock          ...  ...  227 

Marchant,  Parker  «  ...  ...  143 

Marchant,  Roberts  v  495,  500 

Marlborough  v  Godolphin  ...  340 

Marriott,  Raworth  v  ...  250 

Marsden,  Eyre  v       ...  ...  340 

Marsh,  Carrv           ...  Jlpp.  36 

Marshall,  Bennett  v  ...  ...362 

Martin,  Ex  parte      ...  ...  410 

Martin  v  Hinds         ...  App,  30,  38 

Martin,  Jones  t;        ...  184,  191,  198 

Mason  vClarke        ...  115,  116,  121 

Mason  v  Lymberry   ...  ...  340 

Massy  V  Batwell       ...  ...100 

Massy,  Lees  v           ...  ...  494 

Massy  vO'Dell         ...  173,179 

Match  wick  v  Cock    ...  ...  485 

Mather,  Re               ...  ...  415 

Melling  v  Leak         ...  ...    55 

Meredith  v  Heneage  ...  218 

Messenger  v  Andrews  ...  475 
Metcalf  V  The  Airchbishop  of  York  229, 

230 

Meux,  Baggott  v      ...  271,  272,  276 

Milbome,  Doe  v       ...  ...  101 

Mildmay  v  Smith      ...  ...  457 

Miller,  Ex  parte       ...  413,  414,  415 

Miller  v  Scare           ...  ...  410 

Miller's  case              ...  ...415 

Milliken  v  Eidd        ...  ...  123 

Mills,  Farmer  v        ...  ...  439 

Milman,  Morgan  v    ...  ...  517 

Miltown,  Earl  of,  v  Stewart        ...  450 

Minnethorpe,  Gray  v  ...  314 

Minshull,  Bernard  v  219,  223,  227 

Mitchfijl,  Steele  v      ...  99,  100 

Mitford  V  Wicken      ...  426,  430 


Digitized  by 


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TABLE  OF  CASES  CITED. 


11 


Moisej  V  HiUeoat     ... 

App.n 

Nelms,  Anster  v 

...    56 

Molonj  V  ScoUard     ... 

603,  507,  509 

Nelson  v  Brady 

213,  216 

Monck,  Peacock  v    ... 

270,  273 

Nettlesbip,  Clarke  v  ... 

...  123 

Monk  V  Sharp 

...  404 

Newbolt  V  Pryce 

862,  367 

Moore,  Clarke  v 

...    79 

Newcomen  v  Hassard 

271,  274 

Moore  v  Clegbom 

...  230 

Niblock,  Garratt  v    ... 

...  486 

Moore,  Field  v 

...  271 

Nind,  Currie  v 

...  128 

Moore  v  Morris 

...  271 

Nixon  V  Hamilton     ... 

...    99 

Moore,  Orpen  v 

516,517 

Nixon,  Office  v 

dpp.  86,  88,  42 

Morgan  v  Gnrly 

79,  80,  96 

Nixon,  Scott  v 

64,66 

Morgan  v  Milman     ... 

...  517 

Nolan,  Ex  parte 

...  418 

Momington  v  Keane... 

...  229 

Nolan,  In  re 

...  410 

Morrall  t;  Sutton 

...  426 

Norbury,  Lord,  Drew  v 

619,  520 

Morris,  Egan  v 

...  164 

Norris'  case 

...  415 

Morris,  Moore  v 

...  271 

Norris  v  Cooke 

...611 

Morris  v  Morris 

...  274 

Norris  v  Wilkinson  ... 

199,  203,  204 

...266 

Northern  Banking  Company  v  Ro- 

Morse v  Morse 

115,  116,  120 

binson 

...  389 

Morton,  Office  v 

App.   36 

Northumberland,  Earl  of 

f  V  Marquis 

Moses,  Goodright  v   ... 

...  123 

ofGranby 

...  476 

Mostyn,  Townsend  «... 

...512 

Norton  v  Turvill 

...  276 

Mott,  Harris  v 

271,  274 

Nott  V  Biccard 

...  496 

Moxhay,  Tulk  v 

35,  87,  138 

O'Brien,  Roche  v 

...  100 

Mucklow,  Emery  v   ... 

...    68 

aConnell,  Fitzgerald  v 

...259 

Mulgraye,  CoUyear  v 

...  180 

O'DeU,  Massy  V 

173,  179 

Mundy  v  Mundy 

...    64 

aFayt;  Burke 

...  109 

Munkittrick,  Bidgeway  t 

f            ...  116 

Office  V  Gladstone    ... 

App.  36,  38,  39 

Munro,  Eyre  v 

184,  191 

Office  V  Gregg 

App.  86,  88 

Mnrphy,  Crosbie  v    ... 

281,  290,  868, 

Office  V  Morton 

App.   36 

398,  899 

Office  V  Neal 

App.   37 

Murphy,  Smyth  v      ... 

...  213 

Office  V  Nixon 

j^.  86,  38 

Mnrphy,  Stevelly  v  ... 

...  178 

O'Flaherty,  Hartley  v 

870,  378 

Murray  v  Archbishop  of  Armagh 

Oliver,  Ex  parte 

310,  412,  416 

Jpp.    41 

Onions  v  Tyrer 

...247 

Murray,  Bourke  v     ... 

...   67 

Ordich,  Wood  v 

143,  144 

Murray  v  Palmer 

...  100 

O^ReiUy,  Re 

...  339 

Murtagh  e  Tisdall     ... 

...  268 

Orpen  9  Moore 

616,  617 

MusgroYC,  Playfeir  » 

456,  464 

Osborne,  Barlow  v    .. . 

...  230 

Muskerry  e  Chinnery 

...  130 

Osborne  v  Gough 

...  284 

Myers,  Hewson  t; 

...  130 

Owen  V  Flack 

...495 

Naish,  Tourville  v    ... 

151,  152 

Page,  Lane  v 

...  100 

Neal,  Freeland  V 

App.  36,  38 

Page  V  Leapingwell  ... 

•...    49 

Neal,  Office  v 

App.    37 

Paine  V  Wagner 

...  116 

Digitized  by 


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xu 


TABLE  OF  CASES  CITED. 


Palmer,  Murray  v 

...  100 

Parker  v  Carter 

...  123 

Parker,  DiUon  v 

...  476 

Parker  v  Ince 

...    61 

Parker  p  Marchant 

...  143 

Parker  v  Smith 

...  612 

Parkin  v  Thorold 

...495 

Parr  v  Lovegrove 

...496 

Patten  v  Ponlton 

...  247 

Patton,  Wallace  v 

...259 

Payne  9  Trappes 

...  247 

Peacock  v  Monck 

270,  273 

Peake,  Lewis  v 

58,59 

Pearce  v  Edmeades 

...206 

Pearse  &  Protheroe,  Ex  fMurte  199,  203, 

204 
Pearson,  Casamigor  v  ...  439 

Pearson,  Gray  v        2 1 1,  212,  442,  492 
Pegden,  Goodlittle  d.  Peake  «     ...  375 
Pennell  v  Lloyd        ...  ...  387 

Penny,  Briggs  v        ...     219,  226,  426 
P^per,  Maples  v      ...  •••    58 

Perkins,  Lord  Bandcliff  9  ^.476 

Parrott  v  Perrott      ...  247,  250 

Ferrotfs  case  ...     412,  413,  418 

Perry,  Heath  v         ...  ...  206 

Peters,  Usticke  v      ...  476,  480 

Peytai  9  M'Dermott...  ...  216 

Pfeilitaer  9  Hunt       ...  ...  299 

Philoox,  Burrongh  9 ...  ...  340 

PhiKpe,  In  re  ...  ...  525 

PhilUps  9  Hunter     ...  ...  887 

Pickard  9  Bretz  ...  359 

Pierce  9  Williams     ...  ...    58 

PiUer,  Inre  •••  .••414 

Pinchard's  Trust       ...  218, 219 

Pitcher,  Dnmmer  v  ...  ...  476 

PiU  9  Cholmondeley...  ...  325 

Plestero,  Abraham  9 ...  ...  386 

Pluck  9  Digges         ...     174,  305,  307 
Plnmb,  Collins  9       ...  ...    36 

Play&k  V  Mnsgrove...  456,  464 

Fopham  9  Baldwin   ...  512,  516 


Portariington,  Botler  9  96,  259 

Portland,  Dnke  of^  9  Bingham  Jpp.  13 

Potter  9  Browne       ...  ...  385 

Potts,  Hunter  9         ...  385, 387 

Poulden,  Attorney-General «  ...  438 

PonUqn,  Patten  9      ...  ...  247 

Powell  V  Thomas      ...  ...    35 

Power  9  Bailey         . . .  272,  275 

Power,  Drew  9          ...  314, 325 

Price,  Curtis  9           ...  ...  495 

Probyn  9  Browne      ...  ...  385 

Pressor  9  Edmonds    ...  ...    92 

Pryce,  Newbolt  9      ...  362,  367 

Pulvertoft  9  Pulvertoft  .•.  123 

Pybus  9  Smith          ...  271, 275 

Bacster,  Barnes  9     346,  348,  a49i  350, 

851,  352,  353,  354,  355 

Badford  9  Southern  ...  •••  496 

Ramaden,  Ex  parte   ...  •••  410 

Randall,  Jones  9       ...  ..*  206 

Randall  9  Willis        ...  ...  184 

Randcliff,  Lord,  9  Perkins  ...  457 

Raodfield  9  Randfield  ...  426 
Ranelagh  9  Ranelagh        156,  159,  162 

Bawlings,  Doe  9        •..  ...    94 

Rawlings,  Doe  d.  Phillips  9  ...    80 
Rawlinson,  Coleman  9       456,  457,  465 

Baiworth  9  Marriott  ...  ...  250 

RM  V  Steadman      ...  ...  227 

Read,  West  V            ...  ...511 

Re  Applebee             ...  ...  247 

Re  Corbett's  Trusts  ...  ...  343 

Re  De  Rode              ...  ...247 

Rees,  Evans  9           ...  ...  415 

Rees,  Lewis  9  496,  497,  498,  j501 

Re  Fitzgerald            ...  ...  358 

Reid,  Wilson  9          ...  ...    95 

Reignolds,  Turton  9  ...  Jpp.    13 

Reimers  9  Druce       ...  ..«  386 

ReKeiUy                   ...  348,350 

Re  Mather                ...  ...  415 

Renmon,  Holmes  v    ...  ...  387 

Be  O'Bfeilly              ...  ...  339 


Digitized  by 


Google 


TABLE  OF  CASES  CITED. 


xui 


Bestall,  Sparks  V 

166, 160, 161 

Bex  V  Deane 

...466 

Bex  V  Walters 

...  416 

Reynolds  v  Waring   ... 

...  612 

Bhodes  v  Rhodes 

...  158 

Rieardo  v  Grarcias     ... 

...  387 

Riccard,  Nott  v 

...496 

Rice,  James  v 

...199 

Richard  t;  Isaac 

...  290 

Rickards,  Darbon  v   ... 

...439 

Ridgeway  v  Monkittrick 

...  116 

Ridg^way  v  Wharton 

...  618 

Ringrose  v  Branham ... 

...  484 

Rippon  V  Dawding    *.. 

...272 

Robello,  Delmare  v    ... 

...  862 

Roberts  v  Marchant  ... 

496,500 

Rabins,  Boyd  v 

...    60 

Robinson,  Boyd  v 

...    59 

-Robinson,  Leake  v     ••• 

...  494 

Robinson,  The  Northern  Banking 

Company  9        ...  -.  389 

Roche,  Hall  V           ...  ...467 

Roche  V  O'Brien        ..*  ...  100 

Roe  V  Hayley            ...  ...    79 

Roe,  Jackson  v          •••  ...    15 

Roe  V  LidweU            ...  ...  496 

Rogers,  Ex  parte       ...  160, 161,  162 

Rogers,  In  re            ...  ...  422 

Rc^Lcby,  Creswick  v  ...  App.  26,  29 

Bollmgj  Doe  d.  Phipps  v  ...  259 

Boublot  V  Boutell      ...  ...  290 

Bonlston,  Bradford  v.«.  ...  511 

Bonndell  v  Breary     ...  ...  132 

Beoae,  Doe  d.  Gains  v  ...  362 

Bontb,  Blagrave  v    ...  826,  326 
Soyal  Bank  of  Scotland  9  Stein  ...387 

Boyse,  Hamilton  v    ...  ...  612 

Busd  V  Rnsael          ...  199,  203,  204 

Bwsett  V  Clowes       ...  ...  2^ 

Bflssell  V  Jackson      ...  219,  224,  227 

Sabine,  Bellamy  v     ...  ...  268 

SachevereU  o  Froggart  ...  137 

Sadleir,  Fitzmaurice  v ...  99>  128 


Sadleir,  Watson  v     ...  ...  182 

Sadlier  o  Biggs         ...  ...    32 

Salisbury,  The  Marquis  of,,  Beau- 
mont V              ...  ...  495 

Salmond,  Scott  v       ...  ...  439 

Salter,  James  v          ...  306, 306 

Sanctuary,  Gbdson  v ...  ...  467 

Sanford,  Langham  v ...  ...  426 

Saunders,  Bustard  v ...  ...  116 

Saunders,  Jackson  v ...  ...  269 

Savory « King          ...  ...108 

Scholfield  V  Templar ...  15,  16 

Schreier  v  Creed       ...  ...    36 

Scollard,  Molony  v    ...     503,  507,  609 

Soott «  Bargeman     ...  ...166 

Scott  V  Bell               ...  123,130 

Scott  V  Clements       ...  ...    26 

Scott,  Doe  d.  Stephen  9  271,  276 

Scott  f^  Nixon           ...  64, 66 

Seott  V  Salmond        ...  ...  439 

Seagrim,  Gibson  v    ...  348,  361 

Scare,  Miller  ir          ...  ...410 

Selkrig  v  Davis        ...     385,  387,  301 

Sdl  V  Woswick         ...  .J.  887 

Sewell,  Commell  9    ...  ...  387 

Shannon  t;  Bradstreel  ...  617 

Shannon  v  Hodder    ...  ...  806 

Shannon,  Smith        ...  78,  91 

Sharps  Monk  v          ...  ...  404 

Sheffield  Gas  Consumers  Company, 

Attorney-General  v  ...    86 

SherraU  v  Bentley     ...  426,  428 

Shenratt,  Leeming  v  ...  ...  340 

Shiel  V  Incorporated  Society        ...  305 

Shippardson  v  Tower  ...  425 

Short  d.  Gastrell  v  Smith  ...  247 

Short  V  Ealloway      ...  ...    58 

Short,  Tickel  v         ...  814, 316 

Skinner,  Hyde  v       ...  ...    79 

Slatter  r  Slatter        ...  ...169 

Slig<^  The  Marquis  of,  Brown  9        79 

Smith,  Blakely  V       ...  ...611 

Smith  V  Budlanan    ...  ...  886 


Digitized  by 


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ZIV 


TABLE  OF  CASES  CITED. 


Smith  «  Campbell     ... 

...  362 

Stibbert,  Taylor  v 

511,512 

Smith  V  Compton 

...    58 

Stockdale  v  Busby 

...  362 

Smith  t;  Coney 

...  362 

Stocken  v  Dawson 

...  509 

Smith,  Doe  d.  Westmoreland  t;    ...  456 

Stocker  v  Dean 

...  138 

Smith,  Jones  v 

...511 

Stokes,  £z  parte 

...415 

Smith  V  Lovegrove    . . . 

Jpp.  36,  37 

Stokes,  In  re 

...414 

Smith,  Mildmay  v     ... 

...  457 

Stoney,  Kent  v 

...    80 

Smith,  Parker  v 

...  512 

Stoughton  V  Crosbie 

99,  100,  512 

Smith,  Pybus  v 

271,  275 

Strickland  v  Aldridge 

...  224 

Smith  &  Boss,  In  re  ... 

857,  360 

Stringer  v  Gardiner 

... 

...  362 

Smith  &  Boss,  Lewis  &  another  v     399 

Stronghill  v  Buck 

.«• 

...  100 

Smith  V  Shannon 

78,91 

Stupart  V  Arrowsmith 

...  314 

Smith,  Short  d.  Gastrell  v 

...  247 

Sugden,  Stelfox  v 

••« 

...  439 

Smith  V  Smith 

180,  512 

Sugrue,  Crosbie  v 

... 

...305 

Smith,  Wheeler  v      ... 

...  218 

Sumner  v  Thorpe 

... 

...  315 

Smyth  V  Murphy 

...  213 

Sutton,  Mofrall  v 

... 

...  426 

Snow,  Steward  v 

...  247 

Sutton  V  Tone 

... 

...  115 

Snow,  Wilbraham  v  ... 

...  457 

Swan  V  Holmes 

... 

...  206 

Soames  ©  Spencer     ... 

...  511 

Taplin  v  Florence 

... 

...    39 

Southcome  t;  The  Bishop  of  Exeter  79, 

Taylor,  Bowman  v 

... 

...    55 

80 

Taylor  v  Cole 

... 

...  456 

Southern,  Badford  v  ... 

...  496 

Taylor  v  Gorman 

... 

218,  216 

Sparkes  t;  Bestall      ... 

156,  160,  161 

Taylor  v  Haylin 

... 

...  325 

Sparrow  V  Cooper     ... 

...  138 

Templar,  Scholfield 

u  .. 

15,16 

Spence,  Browne  v     ... 

Jpp.  27,  28 

Taylor  v  Stibbert 

... 

511,512 

Spencer,  Soames  v    ... 

...511 

Taylor  v  Waters 

... 

38,39 

Spencer's  case 

...    78 

Taylor  v  Watson 

..-. 

...    35 

Spicer  v  Todd 

...    68 

Tebbs,  Walgrave  v 

... 

...  219 

Spooner  v  Weyman  ... 

...  200 

Tennant,  Hulme  v 

... 

...  275 

Spooner's  Trusts 

426,  428 

Thick,  Balls  v 

... 

...  467 

Squire,  Wilson  v 

...    49 

Thomas,  Langley  v 

... 

...  480 

Stainbridge,  Jolland  v 

...  512 

Thomas,  Powell  v 

... 

...    35 

Standen  v  Standen     ... 

...  362 

Thomond,  Wilson  v 

... 

...611 

Staunton  v  Vemey    ... 

...    17 

Thompson,  Hoyte  v 

••• 

386,  387 

Stead  V  Wilson 

...  276 

Thome,  Haslope  v 

••• 

282,  283 

Steadman,  Bead  v     ... 

...  227 

Thorold,  Parkin  v 

... 

...  495 

Steele  v  Mitchell 

99,  100 

Thorpe,  Frankfort  v 

... 

...  503 

Stein,  Boyal  Bank  of  Scotland  t;       387 

Thorpe,  Sumner  v 

... 

...  315 

Stelfox  t;  Sugden 

...  439 

Tickel  V  Short 

••• 

314,  315 

Stephens,  Mann  v 

35,  138 

Tidd  t;  Lister 

... 

...  360 

Stevelly  v  Murphy  ... 

...  178 

Tiemey,  Lassence  v 

271, 

339,340,342 

Steward  v  Snow 

...  247 

Timmins,  Morris  v 

... 

...265 

Stewart,  Earl  of  Miltown 

V          ...  450 

Tindall  v  Bell 

... 

...    58 

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TABLE  OF  CASES  CITED. 


X7 


Tipping  V  Aokerslej 

382,  383 

Walcott  V  Condon     ... 

268,  269 

Tipping's  Estate,  In  re 

...  174 

Walgrave  v  Tebbs     ... 

...  219 

TisdaU,  Mnrtagh  V   ... 

...  268 

Walker  v  Jeffreys 

79,95 

Todd,  Spicer  v 

...    68 

Walker  v  Walker      ... 

...  166 

Toddington,  The  King  v 

...  517 

Walker's  case 

...  410 

Tone,  Sutton  v 

...  115 

Wallace  »  Patton      ... 

...  259 

Tongue,  Heap  v 

...  123 

Wallace,  M'Dermot  v 

...  206 

Tourville  v  Naish 

151,  152 

WaUer,  HUlary  v      ... 

...  447 

Tower,  Shippardson  v 

...  425 

Walpole  V  Cholmondely 

...  247 

Townly  ©  Bolton      ... 

...206 

Walpole  V  M'Clintock 

...  520 

Towns  V  Wentworth 

...  156 

Walters,  Rex  v 

...  415 

Townsend,  Gardiner  v 

...  132 

Warburgh  v  Tucker 

...    58 

Townsend,  Magee  v 

...  339 

Ward,  Biggs  v 

...  218 

Townsend  r  Mostyn 

...512 

Ward,  Ex  parte 

...  410 

Trant  v  Dwyer 

...    79 

Ward  V  Gray            115, 

118,  121,  122 

Trappes,  Payne  v 

...  247 

Ward,  Jennings  v 

...  368 

Trebecr  Keith    .      ,.. 

'^tpp*  36 

Waring,  Reynolds  v  ... 

...  512 

Tredennick,  Dunbar  v 

...  100 

Warren,  Law  v 

...  123 

Tregoe,  Hayter  v 

...    43 

Waters,  Taylor  v 

38,39 

Trotter,  Crawford  v  ... 

116,  120 

Waters,  Williams  v  ... 

...496 

Tuck,  Garrard  v 

...    65 

Watson,  Fitzpatrick  v 

...  215 

Tucker,  Warburg  »  ... 

...    58 

Watson  V  Sadleir 

...  132 

Tulk  V  MoThay 

35,  87,  138 

Watson,  Taylor  v      ... 

...    35 

Tnllett  V  Armstrong 

271,  273,  275 

Weatherall  t;  Goring 

...  137 

Turvill,  Norton  V 

...  275 

Webb  V  Wools 

...  218 

Turton  9  Beignolds  ... 

App.  13 

Webster,  Johnston  v 

...  520 

Twig,  Britton  v 

...  375 

Wedgwood  v  Adams 

...  214 

Twiss,  York  v 

...  456 

Wentworth,  Towns  © 

...  156 

T^dall,  Cohnore  v  ... 

...  496 

West,  Calcraft  V 

...    40 

Tyrconnell,  Lord,  v  The  Duke  of 

West  V  Read 

...  511 

Ancaster 

...  100 

Westcott  V  Culliford 

...  184 

Tyrer,  Onions  v 

...  247 

Weyman,  Spooner  v 

...  200 

Ulrich  V  Lichfield      ... 

426,  428 

Wharton  v  Barker     ... 

...  494 

Usticke  V  Peters 

476,  480 

Wharton,  Ridgeway  v 

...518 

Yaughan  t;  Ascue 

App.n 

W  batman  v  Gibson     . . . 

53,  188 

Yaughan  e  Marquis  of  Headford      1 1 6 

Wheatley,  McDowell  v 

281,  282,  286, 

Yemey,  Staunton  v  ... 

...    17 

290,  291,  293,  358, 

897,  398,  399 

Yemen,  Lord  Hardwicke 

V          ...314 

Wheeler  v  Smith       ... 

...  218 

Yicars  Choral  v  Ayres 

...  496 

Whieldon,  Grordon  v 

...  115 

Yogel,  Ex  parte 

...  414 

W  hite  V  Anderson    ... 

...  229 

Wade,  Averall  v 

370,  372 

White,  Deed.  Barton  V 

...  484 

Wade,  Birch  v 

...  340 

Whitehead  v  Hughes 

...    68 

Wagner,  Paine  v 

...  115 

Wicken,  Mitford  v     ... 

426,  430 

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XTi                                TABLE  OF  CASES  CITED. 

Wickham  v  Hawker ... 

...    89 

Winteringham,  Loscombe  v 

43,48 

Wiekham  v  Wickham 

...  495 

Witts  t>  Boddington  ... 

...  340 

Wienholt,  Logan  v    ... 

184,  190 

Wood  V  Cox 

...  219 

Wilbraham  v  Snow  ... 

..•  467 

Wood  V  Knox 

...  269 

Wik50x  V  Hannyngton 

...  271 

Wood  »  Leadbitter    ... 

35,  38,  39 

Wild's  case 

...  116 

Wood  V  Ordich 

143,^144 

Wilkinson,  Norris  v  ... 

199,  203,  204 

Wood  V  The  Copper-miners 

Com- 

Willett  V  Winnell      ... 

...368 

pany 

...  183 

Williams  v  Armstrong 

...    49 

Woodgate  t;  KnatchbuU 

466,  457 

Williams  v  Chitty     ... 

143,  144 

Woods,  Bliss  V 

App.  11 

Williams  v  Drury      ... 

...  404 

Wools,  Webb  v 

...  218 

Williams,  Keys  v 

199,  204 

Woolston,  Zouch  v    ... 

...  110 

Williams  v  Lucas      ... 

...  132 

Worthington,  Edge  v        19S 

1,  203,  204 

Williams,  Pierce  v    ... 

...    68 

Woswick,  Sell  v 

...  387 

Williams  »  Waters    ... 

...  496 

Wright  V  Cadogan    ... 

...  272 

Williams  v  Williams 

...  218 

Wright  r  Callender  ... 

...439 

Willis,  Douglas  v      — 

...206 

Wright,  Jesson  v 

376,  376 

Willis  V  Black 

183,  190 

Wright  V  Keily 

...  214 

WUlis,  Randall  v      ... 

...  184 

Wyatt  V  Barwell 

...516 

Wills  V  Adey 

...  284 

Wynch's  Trusts,  In  re 

...  ^75 

Wilson  V  Hodges 

...  449 

Yarborough,  Earl  of,  Lyle  v 

...496 

WUson  V  Beid 

...    95 

York,   The  Archbishop   of. 

Met- 

Wilson  V  Squire 

...    49 

calfv 

229,  230 

Wilson,  Stead  v 

...276 

York  t»  Twiss 

...  456 

Wilson  V  Thomond    ... 

...511 

Young,  Barkworth  t;        183,  191,  192, 

Wilton,  Doe  v 

...  164 

193,  194 

Windham  v  Windham 

...206 

Young,  Irving  v 

...314 

Windus  V  Windus     ... 

426,  430 

Young  V  Winter 

...    68 

WinneU,  Willett  v    ... 

...  368 

Zichi,  Marquis  of  Hertford  v 

197 

Winter,  Young  V 

...    58 

Zouch  V  Woolston    . . . 

...  110 

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CHANCERY    REPORTS, 

BEING   A    8B&IE8   OF 

CASES  ARGUED  AND  DETERMINED 

IN   TBB 

HIGH  COURT  OF  CHANCERY, 

COURT  OF  APPEAL  IN  CHANCERY, 

llolls  €omt,  Janhb  istahs  Court 

AND 

COURT  OF  BANKRUPTCY  AND  INSOLVENCY 


Court  oC  9ppeal  fit  Cjbaitceri^* 

In  the  Matter  of  the  Estate  of 
JOHN  WILLIAM  BURMESTER,  FARMERY  JOHN  LAW 
and  JAMES  SADLEIR,  Oumers  and  Petitioners ; 
Continued  in  the  names  of 
JOHN  WILLIAM  BURMESTER,  WILLIAM  CORY 
and  JAMES  ANDREW  DURHAM,  Owners  and  Petitioners;         iggO. 
THOMAS  JOSEPH  EYRE,  Appellant.  Ch,App€aL 
May  29,  81. 


The  following  were  the  material  facts  disclosed  by  the  pleadings  s.,  being 

and  affidavits  in  this  case : — In  the  years  1843,  1844  and  1845,  Mr.  ed^to  B.  and 

Eyre*  *^®  appellant,   had  employed  John  Sadleir  deceased,  as  his  ^greed^wiiA  b! 

for  a  fixrther 
advance,  on  a  mortgage  of  rarioufl  estates  in  Ireland.  By  the  deed  of  mortgage,  S. 
covenanted  that  the  lands  of  E.,  which  formed  part  of  the  secority,  were  free  iix>m 
inenmbrances,  and  for  farther  assurance.  No  title  was  famished  by  S.,  nor  search  in 
the  registry  in  Ireland  made  by  B.  Before  the  entire  advance  was  paid  over  to  S., 
it  was  discovered  that  the  lands  of  E.  were  sabject  to  a  mortgage  to  E,  B.  there- 
upon applied  to  S.,  who  told  him  thatE.  would  release  the  Unds,  on  his  (S.'s) 
reqnest ;  on  which  assurance  B.  paid  over  the  residae  of  the  loan  to  S.  S.,  sabse- 
qnently,  by  fraad,  procured  a  release  from  E.,  of  which  release  B.  was  made  aware, 
bnt  was  ignorant  of  the  fraud.  The  fraud  was  discovered  after  some  months  had 
elapsed. — Held,  that  B.  was  a  purehaser  for  value  of  the  release,  as  having  been 
procured  by  S.,  in  pursuance  of  the  covenants  in  the  mortgage  deed ;  and  that,  being 
i^orant  of  S.'s  fraud,  he  was  entitled  to  retain  the  advantage  which  the  release  had 
given  him. 

VOL,  11.  1 


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In  re 
BURMBSTER 

StQlement. 


2  CHANCERY  REPORTS. 

1860.  solicitor,  in  the  matter  of  a  certain  loan  of  £40,000,  made  bj 
v^J^^ffl;  Mr.  Eyre  to  the  Earl  of  Kingston,  upon  mortgage  of  the  said  EarFs 
life  estate  in  certain  lands ;  and  of  a  certain  other  loan  of  £12,000 
to  Henry  Smith,  Esq.,  upon  mortgage  of  certain  estates  of  the  said 
Henry  Smith ;  and,  by  reason  of  the  insufficiency  of  the  securities 
taken,  or  the  misconduct  of  John  Sadleir  in  that  behalf,  a  great  risk 
had  arisen  that  the  said  sums  would  be  lost ;  and  thereupon  John 
Sadleir  agreed  to  secure  Mr.  Eyre  against  any  ultimate  loss  in 
respect  of  the  said  loans,  by  executing  a  mortgage  of  certain  lands 
of  the  said  John  Sadleir,  as  collateral  security  to  Mr.  Eyre. 

Accordingly,  by  indenture  of  mortgage  of  the  20th  day  of  Octo- 
ber 1854,  after  reciting  that  the  said  sums  of  £40,000  aiid  £12,000 
had  been  advanced  by  Mr.  Eyre,  by  the  hands  of  John  Sadleir,  and 
that  the  said  John  Sadleir  had  agreed  to  secure  him  against  any 
ultimate  loss,  by  reason  of  such  advances,  in  the  manner  therein 
provided,  it  was  witnessed  that  the  said  John  Sadleir  granted  to 
Mr.  Eyre  and  his  heirs  all  the  lands  therein  mentioned,  including 
the  estate  of  Kilcommon  and  other  lands  sold  in  this  matter,  subject 
to  redemption  in  case  the  said  John  Sadleir  should  repay  the  said 
sums  so  advanced  as  aforesaid,  with  interest  at  £6  per  cent.  And 
by  the  said  deed  of  mortgage  the  said  John  Sadleir  and  Mr.  Eyre 
duly  constituted  and  appointed  Mr.  James  Barron  Kennedy  as  agent 
and  receiver  of  the  rents  of  the  said  estates  ;  and  it  was  by  the  said 
deed  of  mortgage  provided  that  the  said  James  Barron  Kennedy 
should,  out  of  the  said  rents,  in  the  first  place,  keep  down  the 
interest  of  certain  incumbrances  affecting  the  said  lands,  and,  in 
the  next  place,  pay  to  Mr.  Eyre  an  annual  sum  of  £3000,  in  part 
liquidation  of  the  said  moneys  so  advanced  by  and  remainiog  due 
to  him,  and  should  pay  the  residue  of  the  said  rents  to  the  said 
John  Sadleir.  It  was  further  provided  that  the  said  John  Sadleir 
should  be  at  liberty  to  sell  the  lands,  as  therein  mentioned,  but 
not  for  any  less  price  than  that  for  which  the  same  had  been 
purchased  by  the  said  John  Sadleir  in  the  Court  of  Incumbered 
Estates ;  and  that  the  produce  of  the  sale  should  be  invested  as 
a  security,  in  place  of  the  lands  sold.  This  deed  of  mortgage  was 
duly  registered   in  Dublin,  on  the   19th  day  of  December  1854. 


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CHANCERY  REPORTS.  3 

John  Sadleir  had  become  a  director  and  the  chairman  of  the  Lon-         1860. 
don  and  County  Bank,  in  or  about  the  year  1848,  and,  from  that  time,     ^J^~^^' 
in  conjunction  with  various  co-directors  of  the  said  Bank,  he  was  bubbcesteb. 

engaged  in  a  great  variety  of  speculations  and  adventures  in  many         

parts  of  the  world ;  and  the  funds  necessary  for  such  speculations 
were  supplied  by  very  large  advances  of  money  made  by  the  said 
Bank  to  him,  as  its  chairman,  in  direct  violation  of  the  existing 
laws  of  the  said  Bank,  and  upon  very  inadequate  security. 

Previously  to  the  year  1863,  the  said  John  Sadleir  had  deposited 
with  the  said  Bank,  as  a  security  to  cover  his  debt  to  the  said  Bank, 
a  certain  deed,  called  *'  the  Chandos  mortgage  deed,"  by  which  cer- 
tain estates  of  the  Duke  of  Buckingham  and  the  Marquis  of  Chandos 
purported  to  be  mortgaged  to  the  said  John  Saldeir,  to  secure  the 
sum  of  £134,934.  8s.  Id.,  as  due  to  him ;  and,  afterwards,  with  the 
permission  of  some  of  the  parties  connected  with  said  Bank,  he 
obtained  possession  of  the  said  Chandos  mortgage  deed  indirectly, 
and  without  the  knowledge  of  the  board  of  directors  of  the  said 
Bank,  and  raised  a  sum  of  £55,000  from  other  persons,  which  he 
applied  to  his  own  use,  having,  nevertheless,  undertaken  to  pay  the 
same  to  the  said  Bank,  in  reduction  of  his  debt  to  them.  He  subse- 
quently deposited  with  the  said  Bank  a  certain  other  deed,  called  '*  a 
declaration  of  trust  of  the  said  Chandos  mortgage ; "  and,  afterwards, 
clandestinely  abstracted  from  the  Bank  the  said  deed  of  declaration 
of  trust,  and  raised  upon  the  same  a  further  sum  of  £10,000,  which 
he  also  applied  to  his  own  use,  all  which  matters  were  well  known 
to  the  directors  of  the  Bank. 

In  the  month  of  May  1855,  John  Sadleir  appears  to  have  owed 
the  Bank  £250,000  and  upwards,  upon  loan  and  discount ;  and,  in 
the  month  of  June  1855,  a  further  advance  was  made  to  him,  of 
£25,000,  upon  discount  of  a  bill  for  that  amount,  drawn  by  the 
Tipperary  Joint-stock  Bank,  of  which  James  Sadleir,  the  brother 
of  the  said  John  Sadleir,  was  the  sole  managing  director. 

On  the  24th  of  July  1855,  John  Sadleir  applied  to  the  Bank  for 
a  further  loan  of  £15,000,  which  was  refused ;  and,  on  the  same 
date,  the  Bank  refused  to  honor  his  cheques,  and  closed  his  drawing 
account,  of  which  they  gave  him  notice.    James  Sadleir,  thereupon, 


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4  CHANCERY  REPORTS,    ' 

1S60.        and  on  the  same  24th  day  of  July,  applied  to  the  Bank  for  a  loan  of 

.^,-  Jl^    the  sum  of  £15,000,  upon  the  security  of  his  promissory  note  for 

BURKESTER.  ^^^  amount  at  twenty-one  days;  and  such  advance  was  made  to 

him  accordingly,  but  in  fact  for  the  urgent  necessities  of  the  said 

John  Sadleir,  as  was  well  known  to  the  dii*ector8. 

On  or  about  the  26th  day  of  July  1855,  James  and  John  Sadleir 
proposed  to  the  said  Bank  that  they  should  advance,  out  of  the 
funds  of  said  Bank,  a  farther  sum  of  £95,000^  to  meet  the  most 
pressing  demands  on  the  safd  John  Sadleir,  and  that,  to  secure  the 
whole  of  the  debt  of  the  said  John  Sadleir  to  the  said  Bank, 
including  the  said  sum  of  £95,000,  all  the  available  property  of  the 
said  John  Sadleir  should  be  vested  in  trustees  to  sell ;  and  James 
Sadleir  then  stated  and  represented  that  John  Sadleir  was  entitled 
to  real  estates  in  Ireland,  to  the  value  of  £174,000,  which  were  to  be 
included  in  such  security  ;  and  James  Sadleir,  as  managing  director 
of  the  said  Tipperary  Joint-stock  Bank,  agreed  to  give  the  guarantee 
of  the  said  Bank  for  the  repayment  of  the  whole  amount  of  the  said 
debt  of  the  said  John  Sadleir  to  the  London  and  County  Bank, 
amounting  to  the  sum  of  £300,000,  or  thereabouts.  To  this  propo- 
sition the  London  and  County  Bank  agreed,  on  the  Slat  of  July. 
Two,  daya  later,  via.,  on  the  second  day  of  the  following  month  of 
August,  twenty  deeds  of  conveyance  were  executed  by  the  said 
John  Sadleir,  bearing  date  respectively  the  1st  day  of  August  1855, 
whereby  he  conveyed,  or  purported  to  convey,  to  John  William 
Burmester,  Farmery  John  Law  and  the  said  James  Sadleir,  as 
trustees,  divers  lands  and  estates  in  Ireland,  including  the  said 
estate  and  lands  of  Kilcommon,  and  the  other  lands  included  in 
Mr..£yre*s  deed  of  mortgage  of  the  20th  day  of  October  1854; 
and,  on  the  same  2nd  day  of  August,  the  said  trustees  executed 
a  declaration  of  trust,  in  writing,  whereby  it  was  declared  that  the 
said  trustees  would  hold  all  the  said  real  and  personal  estate  so 
vested  in  them,  in  trust  to  sell,  and,  out  of  the  proceeds^  to  pay 
all  soma  due  by  the  said  John  Sadleir  to  the  said  London  and 
County  Bank.  It  did  not  appear  that,  with  respect  to  the  said 
estates,  any  statement  of  title  to  the  same  was  ever  made  by  the 
said  John  Sadleir  or  the  said  James  Sadleir  to  the  Bank  or  ita 


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CHANCERY  REPORTS.  5 

solicitors,  or  that  the  Bank,  or  its  solioitors  or  agents,  ever  saw         I860. 

anj  deed  or  dooument  evidencing  the  title  of  the  said  John  Sadleir  y^ 

to  the  same ;  or  that  they  inquired  whether  the  said  John  Sadleir  bormestbr. 

was  in  fact  in  possession  of  or  in  receipt  of  the  rents  of  the  said         

Statement. 
lands,  or  that  any  search  or  inqairj  was  made  by  the  said  Bank  for 

incumbrances  or  judgments  affecting  the  said  lands. 

On  or  about  the  10th  day  of  August  1855,  Mr.  Stevens,  of 
the  firm  of  Wilkinson,  Gumey  &  Stevens,  solicitors  for  the  London 
and  County  Bank,  went  over  to  Dublin,  for  the  purpose  of  regis- 
tering the  twenty  deeds;  and  Mr.  James  Barron  Kennedy,  who 
was  a  member  of  the  firm  of  Messrs.  Morrogh  &  Kennedy,  in 
Dublin,  was  employed  by  the  Bank  to  assist  in  the  registry  thereof. 
Mr.  Kennedy  had  acted  as  Mr.  Eyre's  solicitor  in  the  matter  of 
the  said  mortgage  of  the  20th  of  October  1854,  'and  had  been 
named  receiver  therein ;  and»  behig  thus  aware  of  the  existence 
of  that  security,  he  informed  Mr.  Stevens  thereof;  and  Mr.  Ste- 
vens, thereupon,  on  or  about  the  13th  day  of  August,  wrote  to 
his  said  firm  in  London,  and  also  sent  a  message  by  tel^raph 
to  John  Sadleir,  mentioning  to  both  Mr.  Kennedy's  communication, 
and  desiring  his  partners  to  prevent  the  Bank  parting  with  more 
money  until  the  matter  was  cleared  up. 

On  the  said  13th  day  of  August  1855,  John  Sadleir  wrote  to 
Mr.  Eyre,  who  was  then  in  Bath,  a  letter,  as  foUowa: — 

•'London.  Avgost  13th  1855. 

'*'  Mt  dear  Mr.  Eyre — I  suppose  you  have  with  you  the  indem- 
nity deed  signed  by  me,  in  which  we  both  agpreed  that  a  proviso 
should  be  to  the  effect  that  I  might  substitute  for  the  lands  included 
in  the  deed  other  lands^  or  shares  paying  £5  per  cent.  /  am  tram- 
ferring  now  the  lands  included  in  the  dtd^  in  order  to  enable  me 
to  pay  up  all  my  shares  in  the  Royal  Swedish  Railway,  which  is 
Hkely  to  turn  out  a  very  valuable  concern,  and  to  provide  for  other 
payments,  such  as  calls  on  the  East  Kent  shares  I  hdd,  and  other 
matters ;  and  I  want  you  to  instruct  J.  B.  Kennedy  to  prepare,  at 
my  expense,  such  deed  or  deeds  as  may  be  requisite  to  carry  out 
o«v  instructions  according  to  the  proviso  in  the  indemnity  deed. 
My  notioo  is  that,  as  I  have  to  pay  you  £3000  a-year,  and,  as  I 


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6  CHANCERY  REPORTS. 

1860.        shall  be  entitled  to  £3000  a-year  on  12,000  Rojal  Swedish  shares  of 

^J^S^     £S  each,  folly  paid  up  (and  with  coupons  for  the  interest  at  £5  per 

BUBiCESTER.  ^^^  payable  half-yearly),  it  is  better  for  you,  and  also  for  me,  to 

have  this  certain  means  of  my  paying  the  £3000  regularly  to  you, 

than  I  should  lose  the  present  6pportunity  of  making  a  general 
arrangement  as  to  the  mortgaged  lands,  which  certainly  enables  me 
'  to  have  a  very  large  stake  in  the  Railway,  which  will  have  its  first 
opening  in  next  month.  If  yon  desire  to  have  more  property  in  the 
indemnity  deed  than  the  £60,000  of  Railway  shares,  paying  £3000 
a-year,  I  have  no  objection  to  have  the  Wall  lands,  as  they  are  to 
be  included  in  the  secunty  for  the  Wall  purchase-money  (after 
Moore's  £15,000),  also  made  liable  under  the  indemnity ;  and,  if 
you  would  prefer  that  the  yearly  payment  by  me  to  you  should 
be  £5000,  and  not  £3000,  I  shall  be  quite  prepared  to  meet  your 
wishes  in  this  particular ;  for,  certainly,  by  substituting  the  Railway 
shares,  paying  £5  per  cent.,  for  the  lands,  I  become  enabled  to  pay 
£5000  a-year  far  easier  than  £3000  without  such  an  arrangement. 
If  I  have  not  sufficiently  explained  this  matter  to  you  in  this  letter, 
I  shall  go  to  Bath,  and  explain  my  position  and  plans  to  you  more 
fully.  I  hope  you  will  be  able  to  write  to  me  a  line  by  Tuesday's 
post,  to  No.  1 1  Gloucester-square,  for  I  am  rather  anxious  not  to  let 
the  present  opportunity  slip ;  and,  from  what  I  have  heard  this  day, 
I  feel  unwilling  to  delay  the  afl&ur.  You  might  wish  to  refer  to 
J.  B.  Kennedy  the  task  of  carrying  out  the  alteration  in  the  indem- 
nity, and  the  substitution  of  property  according  to  the  proviso  in 
the  original  deed,  in  a  way  which  would  be  just  and  proper,  as 
regards  our  respective  interests ;  and,  with  that  view,  I  think  if  you 
sent  him  this  letter,  with  your  own  written  instructions,  the  business 
could  be  done  by  him  in  a  satisfactory  manner.  Of  couse,  before  I 
would  expect  you  to  sign  any  deed  of  release  of  lands,  I  should  hand 
you  over  the  Railway  shares,  with  the  coupons  for  the  dividends  or 
interest.  I  do  not  know  whether  you  consider  it  unreasonable  to 
wait  for  the  £1500  I  am  to  pay,  until  I  get  my  coupons  paid  at  the 
Royal  Swedbh  next  month ;  but  if  it  is  inconvenient  to  you  to  give 
me  until  then,  I  believe  I  can  have  no  difficulty  in  discounting  the 
coupons  now  at  once,  and  so  be  able  to  pay  in  the  £1500  to  your 


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CHANCERY  REPORTS.  7 

credit.     If  I  have  to  go  down  to  Bath  oa  Wednesday,  to  see  you  on         I860. 

Ch,  Appeah 

this  indemnity  basiness,  I  shall  explain  to  you  about  Lord  Chandos.      V"-v^ 

In  re 
"  I  remain,  my  dear  Mr.  Eyre,  yours  sincerely,  bubmester. 


'*  John  Sadlieb." 
On  the  following  day  (the  14th  of  August),  Mr.  Eyre  wrote  to 
John  Sadleir  a  letter  in  reply,  to  the  effect  that  he  did  not  perfectly 
understand  his  proposition,  but  was  willing  to  forward  his  views  if 
safe,  and  that  he  would  send  Sadleir's  letter  to  Mr.  Kennedy  for 
consideration  ;  which  accordingly  he  did  on  the  same  day.  On  the 
same  14th  of  August,  and  before  Mr.  Eyre*s  letter  had  reached  Sad> 
leir,  Mr.  Wilkinson  (of  the  firm  of  Wilkinson,  Greene  &  Stevens), 
having  received  Mr.  Stevens'  letter  from  Dublin,  had  an  interview 
with  Sadleir,  who  informed  him  that  the  mortgage  to  Mr.  Eyre  need 
form  no  difficulty,  as  Mr.  Eyre  would  at  once  release  at  his  request, 
and  that  he  had  written  to  Mr.  Eyre  with  reference  to  the  matter. 
On  the  15th  day  of  August,  John  Sadler  sent  by  telegraph,  to  Mr. 
Kennedy,  a  message  as  follows  :-^*<  Favourable  letter  from  Bath, 
which  I  send  you.  He  also  writes  to  you."  And  on  the  same  16th 
day  of  August,  Mr.  Kennedy  wrote  and  sent  to  Mr.  Stevens,  who 
who  was  then  at  Killamey,  a  letter  as  follows : — ^'  I  got  the  follow- 
ing message  from  London  this  morning : — *  Favourable  letter  from 
Bath,  which  I  send  you.  He  also  writes  to  you.'  As  yet  I  have 
not  got  Mr.  Eyre's  letter." 

On  the  15th  of  August,  James  Sadleir  asked  Mr.  Wilkinson  for  a 
cheque  for  £10,000  (part  of  the  £95,000)  then  in  his  hands;  and 
also  for  another  cheque  for  £15,000  (part  of  the  same  fund),  for  the 
purpose  of  paying  off  the  £15,000  promissory  note  of  James  Sadleir. 
Mr.  Wilkinson  said  that  this  money  could  not  be  paid  until  the  mat- 
ter of  Mr.  Eyre's  mortgage  was  arranged ;  whereupon  John  Sadleir, 
who  was  present,  stated  to  Mr.  Wilkinson,  that  he  had  had  a  com- 
munication from  Mr.  Eyre,  undertaking  to  release  the  estates  from 
the  mortgage;  and  in  reliance  on  that  assertion  the  two  cheques 
(constituting  the  then  unpaid  part  of  the  £95,000)  were  handed 
over. 

On  the  same  15th  day  of  August,  John  Sadleir  wrote  and  sent  to 
Mr.  Eyre  another  letter,  which  was  as  follows : — 


Statement. 


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8  CHANCERY  REPORTS. 

1860.  "11  Gloncester-sqiiare,  Hyde  Park,  London, 

Ck^ppeai.  "  16th  Augnst  1855. 

BURME8TSR.  *'  ^^  DEAR  Mb.  Etre — I  am  (}tiite  satisfied  that  the  ot>eration 
of  substitutiDg  other  security  for  the  lands  now  included  in  the  in- 
demnitj  deed  should  be  according  to  what  J.  B»  Kennedy  may 
consider  right  and  fair  as  between  us  two.  From  the  beginning  to 
the  end,  I  have  but  the  one  object,  and  that  is,  to  manage  matters 
so  as  that,  whatever  delays  or  annoyances  you  may  have  had  to  ex- 
perience heretofore,  no  ultimate  loss  should  at  all  eivents  happen. 
This  change  of  security  will  greatly  facilitate  me  in  my  efforts,  with- 
out, I  trust,  at  all  damaging  your  position.  In  fact  whatever  serves 
me,  in  this  respect,  cannot,  I  believe,  damage  yon.  The  lands  in- 
cluded in  the  indemnity  deed  are  worth,  I  suppose,  about  £106,000, 
subject  to  mortgages  to  the  amount  of  £46,000.  I  am  looking  to 
recovering  losses  on  foot  of  lands,  by  the  gain  on  the  Royal  Swedish 
shares ;  and  I  think  that  in  proposing  to  substitute  for  the  indemnity 
lands  12,000  Royal  Swedish  shares,  producing  £3000  a-year,  and 
agreeing  to  the  Wall  lands  standing  also  as  an  indemnity,  and  in- 
creasing the  yearly  payment  to  you  from  £3000  to  £5000,  I  will  be 
carrying  out  an  arrangement  which  must  be  of  the  two  more  favour- 
able to  your  interests  than  the  present  one.  The  present  arrange- 
ment was  the  best  I  could  offer  and  make  at  the  time ;  but  I  told  J. 
B.  Kennedy  at  the  time,  that  I  would  want  to  act  on  the  proviso 
for  liberty  to  substitute  securities,  in  order  to  carry  out  my  own 
plans  for  covwing  and  protecting  myself  against  loss.  You  most 
bear  in  mind  that,  after  all,  it  may  turn  out  that  I  will  not  have  to  . 
make  good  a  very  serious  loss,  in  re  Kingston^  and  that  when  the 
poUcy  for  £4000,  in  re  Smith  v.  Dennehy^  falls  in,  the  loss  in  that 
case  will  be  lessened  too.  However,  we  shall  see  what  view  J.  B. 
Kennedy  will  take  of  the  matter.  Mr.  William  Eyre  has  not  any 
charge  or  claim  on  the  Wall  lands.  He  has  obtained  from  me  a 
security  on  portions  of  the  Cahir  lands,  and  the  other  lands  not  in* 
eluded  in  the  indemnity  deed  \  so  that  what  I  propose  is,  that  your 
indemnity  should  attach  on  the  Wall  lands,  subject  only  tq  Judge 
Moore's  £15,000,  and  your  own  claim  thereon. — ^I  remain,  my  dear 
Mr.  Eyre,  yours  truly,  "  John  Sadleir.*' 

*.*  To  Thomas  Etbb,  Eeq." 


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CHANCERY  REPORTS.  9 

On  the  I6th  day  of  August,  Mr.  Kennedy  received  a  letter  from         1860. 
John  Sadleir,  written  by  him  on  the  15th  of  August,  suggesting  that      »     -^   ^» 
Mr.  Kennedy  should  go  to  Bath,  to  negociate  with  Mr.  Eyre  the  BURHfESTER. 

proposed  substitution  of  securities,  and  inclosing  Mr.  Eyre's  letter         

of  the  14th  of  August.  And  on  the  16th  day  of  August,  Mr. 
Kennedy  received  from  the  said  John  Sadleir  another  letter,  inclos- 
ing a  copy  of  a  share  in  the  Swedish  Railway  Company,  and  of  the 
charter,  prospectus  and  reports  of  that  Company.  Mr.  Kennedy, 
having  received  such  letters,  wrote  and  sent  to  Mr.  Stevens,  who 
was  still  at  Killarney,  a  letter  as  follows  : — 

*'  5  Great  Denmark-street,  Dublin,  16th  Angiist  1855. 

'^  My  dsar  Sib — I  have  had  letters  from  Sadleir,  also  from 
Mr.  Eyre,  and  I  consider  my  best  course  is  to  go  to  Bath  to-night, 
imd  arrange  with  Mr.  Eyre  as  to  the  exchange,  and  for  releasing^ 
his  lands.  I  shall  be  back,  I  hope,  on  Monday,  and  meet  you  here. 
I  send  you  letters,  and  leave  your  bag  and  deeds  with  Mr.  John- 
ston. The  parcel  came  to-day  from  Nicholas-lane^  but  the  deed  I 
want  is  not  in  it.    I  have  written  for  it. — Yours  truly, 

•«  J.  R.  Stevkhs,  Esq."  "  J.  B.  Kennedy. 

Mr.  Kennedy  had  previously  informed  Mr.  Stevens  that  an  ex- 
change of  the  securities  so  held  by  the  petitioner  was  intended  to 
take  place. 

Mr.  Kennedy  left  Dublin  accordingly,  on  the  I6th  day  of 
August,  and  arrived  in  Bath  on  the  17th  of  that  month.  On 
the  16th  of  August  he  sent  the  following  telegraphic  message  to 
John  Sadleir : — "  Dublin — To  John  Sadleir,  Reform  Club,  London. 
I  go  to  Bath  to-night,  and  will  telegraph  to-morrow  to  Nicholas- 
lane*  what  I  do.  1  hope  to  leave  Bath  Saturday  morning."  And 
during  his  journey,  Mr.  Kennedy  sent  a  second  telegraphic  mes- 
sage to  John  Sadleir :—"  Stafford— To  J.  Sadleir,  Reform  Club, 
London. — To  secure  £5000  a-year  there  should  be  20,000  shares 
of  £5  each  ;  four  per  cent,  only  stated  on  the  share  sent."  And  on 
his  arrival  in  Bath,  on  the  said  17th  of  August,  he  received  from 
John  Sadleir  two  telegraphic  messages  in  reply,  as  follows : — "  From 
J.  Sadleir,  London,  to  J.  B.  Kennedy,  White  Hart  Hotel,  Bath— 

•  Where  Messrs.  Wilkinson,  Gumey  &  Stevens  had  their  office. 
VOL.  II.        *  2  * 


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10  CHANCERY  REPORTS. 

'I860.        The  shares  to  the  amount  you  meBtioo  can  be  given  ;  if  not,  other 
Ch.  AppwL 
"^^^ '      property.    Dargan's  note  for  £12,000,  due  Ist  May  next,  can  be 

BUBBCBeTES.  given."  From  same  to  same : — **  If  requisite,  James  will  guarantee 
Staument  ^^®  £5000  a-year;  in  May  next,  ten  or  twenty  thousand  <x>uld 
be  paid.''  Mr.  Kennedy  did  not  send  any  telegraphic  message  to 
Nicholas-lane,  inasmuch  as,  after  his  interview  with  Mr.  Eyre,  as 
next  hereinafter  stated,  he  was  unable  to  state  that  Mr.  Eyre  would 
release  his  said  security  until  the  inquiries  Mr.  Kennedy  was  to 
make  were  satisfactorily  answered. 

On  the  said  17th  day  of  August,  Mr.  Eyre  had  an  interview 
with  Mr.  Kennedy,  when  Mr.  Eyre  agreed  to  the  arrangement 
proposed,  subject,  nevertheless,  to  the  result  of  certain  inquiries  to 
be  made  as  to  the  line  of  Railway,  and  the  value  of  the  said  shares ; 
and  Mr.  Kennedy  undertook  to  go  to  London,  to  make  inquiry  re- 
specting the  said  line  and  shares.  Mr.  Kennedy  accordingly  pro- 
ceeded to  London,  and  met  John  Sadleir  there,  on  the  evening  of 
the  said  l7th  of  August,  and  handed  to  him  certain  queries  in  writ- 
ing, as  to  the  Railway  and  shares  ;  and,  on  the  1 8th  of  August  the 
said  Mr.  Kennedy  and  John  Sadleir  had  an  interview,  and  the 
said  John  Sadleir  then  delivered  to  Mr.  Kennedy  answers  in  writ- 
ing  to  the  said  inquiries,  which  answers  Mr.  Kennedy  embodied  in 
a  letter  written  by  him  to  Mr.  Eyre,  on  the  same  18th  of  August, 
recommending  the  acceptance  of  Sadleir's  proposition. 

On  Monday  the  20th  of  August,  and  not  before,  Mr.  Eyre 
wrote  to  Mr.  Kennedy,  according  to  a  form  inclosed  in  the  said 
letter,  a  letter  as  follows : — 

"  Bath,  20th  Angnst  1655. 
"  Dbar  Sis — Upon  the  terms  stated  in  your  memorandum  of 
the  18th  instant,  I  will  release  the  Irish  estates  of  Kilcommon, 
Skehana,  Boggawn,  Castlegrace  and  Clonmore,  from  the  indenmity 
given  me  upon  them  under  the  deed  of  the  20th  of  August  1864, 
and  I  request  you  will  prepare  the  necessary  docqments  for  my 
signature, — Tours  truly,  Thomas  Etbb." 

And  it  was  only  then  that  Mr.  Eyre  had  finally  determined  to 
accept  Sadleir's  proposal  for  a  change  of  securities.  However,  Mr. 
Kennedy,  on  his  arrival  in  Dublin,  on  Sunday  the  19th  of  August, 


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CHANCERY  REPORTS.  11 

immediately  had  an  iDterview  with  Mr.  Stevens ;  and,  aasuming  that         I860. 

Mr.  Ejre  would  act  on  his  recommendation,  told  Mr.  Stevens  that      -l-^-^ 

the  release  would  be  executed,  and,  at  his  request,  then  wrote  a  bitbmesteIi. 

letter,  which,  however,  was  dated  the  18th  of  that  month,  and  was        

Statemeni. 

as  follows : — 

"  Great  Denmark-Street,  18th  Anguat  1855. 
**  Dbas  Sirs — We  have  arranged  with  Mr.  Eyre  to  release  the 
Kilcommon,  Castlegrace  and  Clonmore  estates,  and  hope  to  have 
the  necessary  deed  executed  in  a  week  or  ten  days. — Yours  truly, 

'^  MoRBOOH  &  Kennedy. 
•*  To  Mesm.  Wilkinson,  Gubnkt  &  Stevens." 

On  the  13th  day  of  October  1855,  Mr.  Eyre  executed  a  certain 
deed  of  re-conveyance,  made  between  him  of  the  one  part,  and  John 
Sadleir  of  the  other  part,  and  purporting  to  bear  date  the  5th  day  of 
October  1855,  whereby,  after  reciting  the  deed  of  the  20th  October 
1854,  Mr.  Eyre,  at  the  request  of  the  said  John  Sadleir,  re-conveyed 
all  the  lands  therein  comprised  to  the  said  John  Sadleir,  discharged 
of  the  trusts  of  the  said  indenture  of  mortgage. 

In  this  deed  no  consideration  was  stated,  nor  any  reason  given  for 
such  re-conveyance.  It  was  executed  by  Sadleir,  in  the  office  of 
the  solicitors  of  the  bank  in  London,  in  presence  of  one  of  their 
clerks  and  of  Mr.  Kennedy,  and  taken  by  Mr.  Kennedy  to  Dublin, 
for  registratiod ;  and  Mr.  Stevens  deposed  that,  in  the  subsequent 
November,  being  in  Dublin,  he  had  inquired  and  was  satisfied  that  the 
release  was  registered.  On  the  same  ISth  of  October  1855,  Mr. 
Eyre  executed  certain  indented  articles  of  agreement,  purporting  to 
bear  date  the  6th  day  of  October  1 855,  and  made  between  the  said 
John  Sadleir  of  the  first  part,  Mr.  Eyre  of  the  second  part,  and  the 
said  jKmes  Sadleir  of  the  third  part ;  whereby,  after  reciting  the  said 
indentures  of  the  20th  of  October  1854,  and  of  the  5th  October  1855, 
and  that  Mr.  Eyre  had  agreed,  in  lieu  of  the  said  mortgage,  to  accept 
the  securities  therein  mentioned,  and  reciting  the  delivery  of  the 
said  Swedish  Railway  shares,  and  reciting  that,  by  virtue  of  a  special 
resolution  of  the  said  Railway  Company,  of  the  26th  of  August  1855, 
the  said  shares  bore  interest  at  £5  per  cent,  per  annum,  it  was 
witnessed  that  the  said  shares  should  be  vested  in  Mr.  Eyre,  sub- 


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12  CHANCERY  REPORTS. 

I860.  ject  to  redemption  on  the  terms  therein  expressed,  and  correspond^ 
■-  V  -^  ing  to  the  terms  contained  in  the  said  deed  of  the  20th  of  October 
BURME8TER.  1854.  And  bj  the  said  agreement  the  said  John  Sadleir  covenanted 
to  convey,  by  way  of  mortgage  and  farther  security,  to  Mr.  Eyre, 
certain  lands  called  the  Wall  or  Coolnamuck  Estate,  subject  to  a 
certain  other  agreement  of  the  13th  of  May  1855,  relating  thereto,  and 
entered  into  between  Mr.  Eyre  and  the  said  John  Sadleir,  and  in 
which  said  articles  were  contained  certain  powers  of  sale,  respecting 
the  said  last  mentioned  lands;  and  by  the  said  articles,  the  said 
James  and  John  Sadleir  covenanted  with  Mr.  Eyre  for  the  payment 
of  an  annual  sum  of  jE5000,  in  liquidation  of  Mr.  Eyre's  demands ;  and 
it  was  declared,  that  any  moneys  received  by  Mr.  Eyre,  on  foot  of 
the  said  promissory,  note  for  £12,000,  of  the  said  William  Dargan, 
should  be  applied  in  liquidation  of  his  said  demands. 

At  the  time  of  the  execution  of  the  said  agreement  by  Mr.  Eyre, 
the  said  Swedish  Railway  shares,  and  also  a  copy  of  the  said  resolu- 
tion of  the  26th  day  of  August  1 855,  and  the  said  promissory  note 
of  the  said  William  Dargan,  were  handed^over  to  Mr.  Eyre  by  Mr. 
Kennedy. 

The  intended  mortgage  of  the  lands  of  Coolnamuck  was  never 
executed,  nor  was  any  payment  of  money  ever  made  under  the  pro- 
visions of  the  agreement  of  the  6th  day  October  1855.  And  it  was 
discovered  by  Mr.  Eyre,  after  the  death  of  John  Sadleir,  and  not 
before,  and  established  by  the  evidence  in  this  matter,  that  the 
Swedish  Railway  shares  'were  forgeries ;  that  no  such  minute  or  reso- 
lution of  the  said  Railway  Company  was  ever  made,  as  pretended,  and 
that  the  promissory  note  for  £12,000,  of  the  said  William  Dargan, 
was  also  a  forgery.  It  was  also  proved  that  in  fact  the  Wall  or 
Coolnamuck  lands  were,  previously  to  the  date  of  the  articles  of 
the  6th  day  of  October  1855,  subject  to  charges  which  exceeded  the 
value  of  such  lands,  and  that  the  guarantee  of  James  Sadleir  was 
wholly  worthless. 

By  an  indenture  of  the  7th  day  of  September  1855,  executed  be- 
tween the  said  John  William  Burmester,  Farmery  John  Law,  and 
James  Sadleir,  of  the  one  part,  and  the  said  'John  Sadleir  of  the 
other  part,  after  reciting  the  execution  of  the  said  twenty  deeds  of 


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CHANCERY  REPORTS.  13 

the  1st  of  Aagost  1855,  it  was  declared  that  the  trustees  should  stand    ^  Amieal 
possessed  of  all  the  lands  and  premises  thereby  conveyed,  upon  trust     ^"^li^^ 
to  sell,  and  out  of  the  proceeds  to  pay  all  incumbrances  for  the  time  BURiiESTEB. 
being  affecting  the  said  landSj  and  upon  trust,  as  to  the  residue  or      statement. 
surplus  of  such  proceeds,  for  the  said  John  Sadleir  absolutely ;  and 
by  another  deed,  of  the  8th  day  of  September  1855,  the  said  John 
Sadleir  declared  a  trust  of  the  said  residue  so  coming  to  him,  and 
that  the  same  should  be  applied  in  discharging  the  sums  due  by  him 
to  the  London  and  County  Bank,  and  to  the  said  Tipperary  Bank. 

John  Sadleir  died,  by  his  own  hand,  in  February  1856,  insolvent ; 
and  that  no  payment  was  made  to  Mr.  Eyre  on  foot  of  the  said 
indenture  of  the  20th  day  of  October  1854,  except  a  payment  of 
£3000,  made  on  or  about  the  4th  day  of  December  1855,  in  pur- 
suance of  the  term^  of  the  said  indenture ;  and  it  was  believed 
that  the  entire  sums  lent  to  Lord  Kingston  and  Mr.  Smith  would 
be  lost. 

On  the  dOth  of  June  1856,  the  said  trustees  presented  a  petition 
to  the  Incumbered  Estates  Court,  for  a  sale,  among  others,  of  the 
lands  included  in  Mr.  Eyre's  mortgage ;  and  Mr.  William  Cory  and 
Mr.  Andrew  Durham  having  been  substituted  for  Messrs.  Law  and  the 
late  James  Sadleir  as  trustees  for  sale,  the  proceedings  were  carried 
on  in  the  names  of  the  new  trustees,  and  the  lands  sold.  On  the 
ruling  of  the  final  schedule  of  incumbrances,  on  the  31st  of  October 
1^9>  Mr.  Eyre,  in  pursuance  of  an  objection  previously  filed  by 
him,  submitted  that,  at  the  date  of  the  declaration  of  trust,  of  the  7th 
of  Septembet  1855,  his  mortgage  was  in  equity  a  subsisting  charge 
on  the  said  lands,  and  a  trust  was,  by  the  last-mentioned  deed,  de- 
clared for  the  payment  of  the  same,  and  that  the  said  London  and' 
County  Bank  could  claim  nothing  under  the  said  last-mentioned 
deed,  or  the  deed  of  the  8th  of  September  1855,  except  the  surplus 
to  which  the  said  John  Sadleir  was  entitled  after  payment  of  Mr. 
Eyre's  mortgage,  of  the  20th  of  October  1 854.  The  indenture  of  the 
7th  day  of  September  1855  was  alone  registered. 

Judge  Longfield,  however,  'was  pleased  to  order  and  adjudge — 
**  That  the  said  release  of  the  5th  day  of  October  1855  was  void  as 
against  any  surplus  coming  to  John  Sadleir,  but  that  the  same  was 


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1860.        valid  as  regards  the  daim  of  the  London  and  County  Bank.**    And 
CA.  AppeuU  ^ 

— p '     it  was  aocordingly  declared  by  the  Court,  that  the  objection  of  Mr. 

BUBME8TER*  Ejrc  should  be  OYerruled  with  costs.  Thereupon  Mr.  Eyre  filed 
Statement.  ^^  petition  of  appeal,  submitting  thereby  that  Judge  Longfleld's 
order  was  erroneous,  and  ought  to  be  reversed  or  varied,  so  far  as  it 
declared  the  said  deed  of  release  valid,  as  regarded  the  claim  of 
the  said  London  and  County  Bank,  and  so  far  as  it  overruled  Mr. 
Eyre's  objection  ;  and  that  he  ought  to  be  declared  entitled  to  a  lien 
on  the  proceeds  of  the  sales  of  the  lands  comprised  in  the  said  in- 
denture of  mortgage,  of  the  20th  of  October  1854,  according  to  the 
rights  conferred  on  him  by  that  deed,  as  if  the  said  indenture  of  re- 
conveyance, of  the  5th  day  of  October  1855,  had  never  been  executed 
by  him. 


The  Aitamey-General  (with  whom  were  Mr.  Rogers  and  Mr. 
May)y  for  the  appellant. 
Argument.  The  question  in  this  case  is  entirely  one  of  equity,  as  neither  of 

the  parties  concerned  has  the  legal  estate  in  the  lands,  which  are 
now  vested  in  the  heir-at-W  of  John  Sadleir.  The  Bank,  in  this 
ease,  does  not  fill  the  position  of  a  purchaser  who  advances  his 
money  on  the  fiiith  of  receiving  an  unincumbered  estate  as  security. 
At  the  time  of  the  mortgage,  their  advances  to  Sadleir,  and  their 
connection  with  him,  had  been  sueh  that  they  were  obliged  to  take 
anything  he  had  to  give  diem  as  security  for.  the  further  advances 
which,  to  save  themselves,  they  were  compelled  to  mi^e  to  him. 
Tbey  never  attempted  to  aseertain,  by  search  in  Ireland,  or  by  any 
investigation  of  title  whatever,  what  they  were  getting  as  security. 
Li  truth,  therefore,  whatever  may  be  the  form  of  the  recitals  and 
covenants  in  their  conveyances,  in  substance  they  took  subject  to 
Mr.  Eyre's  mortgage^  and  any  other  that  might  appear.  They  had 
fall  notioe,  moreover,  that,  if  Mr.  Eyre  released,  it  would  be  only  on 
getting  valid  securities  in  exchange.  They  must  have  known  that 
his  release  was  subject  to 'an  implied  condition  that  it  should  be 
honestly  obtained.  But,  in  Dsust,  they  are  mere  volunteers,  as 
regards  this  release ;  they  never  paid  a  shilling  on  the  faith  of  it. 
The  great  bulk  of  th^  money  they  paid  without  having  taken  the 


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ordiDarj  precaution  of  inquiring  into  Sadleir's  title,  and,  therefore,        1860. 
in  ignorance  of  the  mortgage ;   and  then,  notwithstanding  notice,      >J^JLS 
paid  out  the  remainder  of  their  money,  on  a  promise  of  Sadleir  bubmester. 

that  he  would  obtain  a  release,  and  without  any  communication         

with  Mr.  Eyre  himself.  It  was  not  until  long  afterwards  that 
Mr.  Eyre  re-conveyed ;  and,  up  to  the  moment  of  re-conveyance, 
he  had  never  bound  himself  to  do  anything.  As  far  as  they  were 
concerned,  it  was  a  purely  voluntary  act;  and,  so  fiir  were  they 
from  acting  on  it,  that  they  did  not  see  the  deed  until  after  Sad- 
loir's  death,  and  they  do  not  appear  to  have  been  even  aware  that 
it  was  executed.  They  did  nothing  and  gave  nothing  on  the  &ith 
of  this  release.  A  person  who  has  given  no  consideration  cannot, 
even  though  innocent,  take  advantage  of  a  deed  obtained  by  fraud : 
Sehoifield  v.  Ten^lar{a).  There  is  no  authority  for  saying  that 
if  a  party  buys  subject  to  a  mortgage,  he  can,  without  giving  any 
further  consideration,  avail  himself  of  a  release  obtained  by  the 
fraud  of  his  vendor.  In  such  case,  the  vendor  must  be  considered  as 
the  agent  for  the  purchaser  in  the  negociation  of  the  release ;  and 
the  latter  would,  therefore,  be  affected  by  the  fraud.  The  neglect 
of  this  Bank,  in  making  none  of  the  usual  searches,  disentitles  them 
to  the  consideration  of  a  Court  of  Equity:  Jackson  v.  Roe{b). 
'*It  would  be  against  reason,"  says  the  Master  of  the  Rolls,  in 
Hubbard  v.  Lyater  (c),  where  there  was  a  defence  of  purchase  for 
value  without  notice,  '^to  allow  the  protection  of  this  plea  to  a 
purchaser  who  had  wilfully  relinquished  the  security  which  the 
statute  has  afforded  him.** 

On  the  subject  of  notice,  they  cited  Sug.  Ven.  ^  Pur.^  p.  619, 
and  the  cases  there  referred  to. 

Mr.  Serjeant  Lawson  and  Mr.  Sullivan  (with  whom  were  Mr. 
Brewster  and  Mr.  Romney  Foley\  for  the  London  and  County 
Bank. 

It  is  quite  a  mistake  here  to  suppose  jthat  the  Bank  contracted 
with  Sadleir  for  a  security  on  these  lands  subject  to  Mr.  Eyre's 

(a)  1  Johns.  185.  (6)  2  Sun.  &  Stn.  472. 

(c)  7  It.  Eq.  Rep.  560. 


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In  re 
BURBfESTBB. 

Argument. 


16  CHANCERY  REPORTS. 

I860.  mortgage.  If  they  did,  their  case  would  stand  on  different  grounds 
s^J^fElS  from  what  it  rests  on.  They  contracted,  as  the  deeds  show,  for  a 
security  on  an  unincumbered  estate  (save  as  to  a  specified  mortgage). 
Sadleir  covenanted  that  the  lands  were  unincumbered,  and  for  fur- 
ther assurance.  As  soon  as  the  Bank,  in  the  fair  and  regular 
completion  of  this  conveyance,  discovered  the  existence  of  this 
mortgage,  they  called  on  Sadleir,  in  pursuance  of  his  covenant,  to 
procure  a  release ;  and  it  was  only  on  his  express  understanding  to 
do  so  forthwith  that  the  remainder  of  the  money  was  paid.  How  can  it 
be  said  that  the  Bank  have  not  given  their  money  for  whatever 
Sadleir  procured  for  them  in  pursuance  of  that  undertaking?  They 
are  plainly  purchasers  of  it  for  value.  It  is  not  necessary  that  the 
consideration  in  such  a  case  should  be  paid  to  the  person  releasing : 
CobbeU  V.  Brook  (a).  The  Bank,  as  is  alleged  by  the  appellant 
himself,  held  themselves  altogether  aloof  from  the  dealings  between 
Sadleir  and  Mr.  Eyre ;  and,  in  that  respect,  their  case  is  quite 
distinguishable  from  that  of  Templar,  in  Scholfield  v.  Templar. 
There,  the  misrepresentation  was  made  with  the  concurrence  (no 
doubt  innocently)  of  the  person  who  was  to  obtain  the  advantage 
by  it.  Then,  Immediately  after  the  payment  of  the  money,  they  were 
assured,  by  Mr.  Eyre's  known  solicitor,  with  whom  they  had  been  in 
communication,  that  a  release  would  be  executed  by  Mr.  Eyre; 
and  on  that  assurance,  and  relying  on  the  release,  they  remained 
quiescent  ever  after.  It  is  impossible  to  say  what  their  position 
might  have  been,  with  regard  to  these  moneys,  if  Mr.  Ejrre  had 
refused  to  release,  and  they  had  proceeded  to  call  th^m  in.  They  have, 
therefore,  changed  their  position  materially  on  the  faith  of  his  release. 
He  knew  well,  through  his  solicitor,  that  the  release  was  wanted  to 
enable  Sadleir  to  de^  with  other  persons ;  and,  if  he  intended  that 
there  should  be  any  such  condition  attached  to  it,  with  regard  to 
the  validity  of  the  new  securities,  as  suggested  at  the  Bar,  he  should 
have  so  expressly  stated  at  the  time.  Is  it  to  be  supposed  that 
everyone  taking  lands  released  under  a  proviso,  such  as  was  in  Mr. 
Eyre's  deed,  is  bound  to  see  to  the  title  of  the  substituted  securities  ? 
As  for  negligence,  it  is  Mr.  Eyre's  own  negligence,  in  taking  this 

(a)  20Beav.5a4. 


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17 


great  amount  of  shares  without  taking  a  single  question  at  the         I860. 
Railway  office,  which  has  caused  all  the  difficulty.  .^tppm 

They  referred  to  Staunton  y.   Vemey(a)\  Joyce  v.  De  Mo-  bdrmesteb. 


leym(b\ 

The  Lord  Chancellor. 

The  question  in  this  case  turns  not  upon  the  poiot  of  registry 
search,  or  upon  the  &ct  of  notice  of  the  incumbrance  itself.  It 
comes  simply  to  this ;  if  these  Bankers  have  given  consideration  for 
what  they  derive  under  this  instrument,  unless  you  show  that  they 
had  notice  of  the  fraud  in  question,  or  that  they  were  concerned  in 
the  misrepresentation,  what  case  do  you  make  against  them  ?  That 
distinguishes  their  case  from  the  case  in  Johmon^t  ReporU.  Here, 
the  London  and  County  Bank  had  no  notice  whatever  of  the  fraud ; 
they  are  not  parties  in  any  way  to  the  misrepresentation ;  and  the  sole 
and  single  question  then  is,  have  they  given  consideration  for  what 
they  got  by  virtue  of  this  deed  ?  What  they  got  was  a  discharge  of 
the  incumbrance  from  the  estate  which  they  bought.  They  gave 
eonsideration  for  the  xsontract  to  effect  that  discharge,  and  for  the 
covenant  for  further  assurance  by  John  Sadleir,  and  all  deriving 
under  him,  ineluding  Mr.  Eyre.  This  agreement  is  carried  out. 
The  consideration  comes  down  to  the  completion  of  the  transaction ; 
and  it  is  impossible  to  say  that  the  consideration  does  not  run 
through  the  whole  of  it.  Unless  they  can  be  fixed  with  fraud  or 
ausre^pesentation  prior  to  the  execution  of  the  deed,  their  position 
is  unaffected.  It  would  be  inequitable  in  the  highest  degree  to  take 
ftom  them  the  protection  which  they  got,  in  innocence  of  the  frauds, 
and  upon  the  faith  of  which  they  paid  their  £95,000.  The  judg- 
ment of  the  Court  below  must  be  affirmed,  and  with  costs. 


ArgwrnmU, 


JudgmmU. 


The  Lord  Justice  of  Appeal. 

The  grounds  of  my  opinion,  that  the  order  of  Judge  Longfield 
should  be  affirmed,  have  been  partly  stated  in  the  course  of  the 
acgument.     They  are  very  few  and  simple.     The  London   and 

(«)  2  Ed.  81,  85.  (6)  9Ir,  Eq.  Rep.676;  8,  a,  »  J.  ft  L.  69a 

VOL.  11.  3 


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18 


CHANCERY  REPORTS. 


"  1860. 
Ch.  AppeaL 

In  re 
BURME8TER. 

Judgment. 


County  Bank  are  purchasers  for  value  under  this  deed.  They 
advanced  £95,^00  on  the  mortgage  executed  to  them  by  John 
Sftdleir,  purporting  to  convey  to  their  trustees  the  lands  free  from 
incumbrances.  The  money  advanced  by '  the  Bank  was  the  consi- 
deration as  well  for  the  conveyance  of  the  lands  as  for  the  protection 
which  the  covenant  of  the  deed  bound  John  Sadleir  to  afford,  when- 
ever it  was  found  to  be  necessary.  It  was  in  substance  and  effect 
a  remedy  for  restoring  to  the  Bank  as  much  of  the  money  as  should 
be  equivalent  to  any  undiscovered  incumbrance,  if,  when  discovered, 
John  Sadleir  failed  to  have  the  estate  discharged  from  it.  This  was 
a  continuing  right  on  their  part,  and  an  obligation  on  him  quite 
independent  and  irrespective  of  the  time,  whether  earlier  or  later, 
that  the  £95,000  should  be  advanced^  When,  therefore,  the  incum- 
brance of  Mr.  Eyre  was  discovered,  the  liability  of  John  Sadleir  to 
have  it  released,  or  to  pay  an  equivalent  in  damages,  became  imme- 
diate and  absolute.  To  discharge  it,  he  applied  to  Mr.  Eyre,  who 
declined  to  be  himself  the  medium  of  negociating  the  proposed  sub- 
stitution of  other  security  for  that  he  was  asked  to  relinquish,  and 
committed  the  whole  affair  to  his  solicitor.  In  the  deception  prac- 
tised on  him,  and  the  consequent  loss  incurred  by  Mr.  Eyre,  there 
is  no  pretence  that  the  Bank  participated ;  they  required  only  what 
they  were  entitled  to,  a  release ;  and  John  Sadleir,  under  the  obli- 
gation of  his  covenant,  obtained  it  for  them,  thus  performing  one 
alternative,  and  avoiding  the  other,  of  making  them  restitution  or 
compensation  in  damages.  The  act  of  John  Sadleir  was  only  what 
he  was  legally  bound  to  do.  The  fraud  he  practised  to  accomplish 
it  was  wholly  unknown  and  unsuspected  by  the  Bank,  and,  as  pur- 
chasers, they  have  obtained  what  they  were  entitled  to,  and  have 
paid  for,  and  have  an  indisputable  right  to  retain. 


Order. 


It  is  ordered  by  this  Court  that  the  petition  of  appeal  be, 
and  the  same  is  hereby,  dismissed  with  costs  ;  and,  accord- 
ingly, it  is  further  ordered  that  the  order  of  the  Landed 
Estates  Court,  bearing  date  the  3l6t  day  of  October  1859» 
be,  and  the  same  is  hereby,  af&rmed.  And  it  is  further 
ordered  that  the  deposit  of  £10  lodged  with  the  Registrar 


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19 


1860. 
Ch,  Appeal, 

In  re 


be  paid  to  the  said  John  William  Burmester,  William  Cory, 

and  James  Andrew  Durham,  in  part  payment  of  such  costs. 

And  it  is  further  ordered  that  the  said  appellant  do  pay  bubmester. 

to  the  said  John  William  Burmester,  •  William   Cory  and 

James  Andrew  Durham  their  further  costs  of  this  appeal, 

beyond  the  sum  of  £10,  when  same  shall   be  taxed  and 

ascertained. 

Court  of  Appeal  Hearing  Book,/,  371. 


Judgment, 


In  re  the  Estate  of  GEORGE  JOHN  LANAUZE. 


1859. 
Nov.  22, 


This  was  an  appeal,  on  behalf  of  the  owner,  from  an  order  of  Judge  a  testator  de- 

Longfield  in  the  Landed  Estates  Court,  ruling  that  certain  legacies  ^^^  ^  ^ 

bequeathed  by  the  will  and  codicil  of  John  George  Lanauze  were  ^]J^oldinb^l 

charged  upon  the  lands  sold  in  this  matter.  ^'  «'?au*"h*' 

John  George  Lanauze,  appellant's  uncle,  was,  in  his  lifetime,  pos-  ^7  property 

and  worldly 
estate  what- 
ever," to  a  trustee,  upon  trust,  in  the  first  place,  to  preserve  the  sidd  chattel  interest 
by  payment  of  head-rent  and  renewal  fines.  He  then  bequeathed  certain  pecnniary 
legades,  and,  among  others,  a  smn  of  £100  to  the  trustee;  *'and  as  to,  for  and 
concerning  all  the  residue  of  my  interest  in  my  said  lands,  and  as  to,  for  and  con- 
cerning the  residue,  similarly,  of  m^  other  personal  estate  and  effiscts,  subject  to  the 
hereinbefore  trusts,  I  hereby  give,  beaueath  and  devise  all  such  residue  of  my  inter- 
est in  the  said  lands,  as  also  SH  such  the  residue  of  my  personal  estate  and  ejects,  in 
trust  for  my  eldest  son."  The  testator  then  charged  the  lands  and  the  residue  of 
his  personal  estate  with  certain  sums  for  younger  children.  The  testator  then  de- 
dared  that,  in  case  he  should  die  leaving  no  son,  but  leaving  an  eldest  or  only 
daughter,  then  he  devised  all  his  interest  in  said  lands,  and  ail  the  residue  of  his 
personal  estate,  in  trust  for  such  daughter,  with  remainders  over ;  and  he  directed 
*'  that  ail  the  intermediate  rents  and  profits  of  my  said  lands,  as  well  as  of  the  resi- 
due of  my  said  other  personal  estate  and  effects,  which  shall  accrue,  arise  or  be  made 
out  of  both  said  funds,"  subject  only  to  the  provision  made  for  testator's  wife  by 
their  marriage  settlement,  and  to  his  debts  and  funeral  expenses,  '*  and  to  the  seve- 
ral legacies  hereinbefore  enumerated,"  should  go  to  the  trustee.  In  1846,  Master 
Henn  had  made  a  report,  afterwards  confirmed  by  a  decree  in  Chancery,  by  which  be 
found  that  the  legades  under  the  will  were  not  chaiged  upon  testator's  mterest  in 
the  lands. — Beld,  that,  upon  the  true  construction  of  the  will,  the  legades  were  not 
charged  upon  the  lands. 

Held  alio,  that  the  legatees  were  bound  by  the  Master's  report 

The  Judges  of  the  Landed  Estates  Court  are  bound  by  a  final  decree  of  the  Court 
of  Chancery. 

In  re  Kelfy  (9  Ir.  Chan.  Bep.  103)  commented  on. 


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Statement* 


20  CHANCEBT  REPORTS. 

1859.        sessed  of  a  chattel  leasehold  interest,  under  the  Bishop  of  Eilmore, 

CA«  Appetd, 

'^«— -V — -^     in  portions  of  the  lands  of  Kildrumliftrtin  and  Eilnaleck,  subject  to 
In  re 

ILAJSAUZE,  A  moiety  of  a  yearly  rent  reserved  thereout.  By  his  marriage  set- 
tlement, dated  the  25th  of  April  1832,  he  assigned  to  the  trustees 
therein  named  the  lands  of  (amongst  others)  Eildrumfartin  and  £il- 
naleck,  and  all  his  estate  and  interest,  benefit  of  renewal,  claim  and 
demand  whatsoever,  in  and  to  the  same,  upon  trust  (subject  to  the 
payment  of  the  rent  and  renewal  fines,  and  to  a  life  estate  for  him- 
self) that,  in  the  event  (which  actually  happened)  of  his  own  death 
in  his  wife's  lifetime,  and  of  the  death  of  all  the  issue  of  the  mar- 
riage unmarried  and  under  age,  then  the  wife  should  take  a  certain 
annuity  out  of  the  lands  during  her  life,  and,  immediately  upon  his 
death  in  his  wife's  lifetime,  then  upon  trust,  subject  to  the  wife's 
annuity,  for  such  persons  as  he  should  by  deed  or  will  appoint. 

John  George  Lanauze  subsequently  made  his  will,  dated  the  19th 
of  February  1834,  whereby,  after  confirming  to  his  wife  the  provi- 
sion made  for  her  by  the  deed  of  settlement,  he  devised  all  his 
interest  in  the  lands  of  Eildrumfartin  and  Eilnaleck,  and  certain 
other  lands  called  Tonelyon  and  Coolkill,  to  his  trustee  and  friend 
William  0*ReilIy,  his  executors  and  administrators,  upon  thist, 
^*  First,  that  he  (and,  during  the  continuance  of  this  present  trust 
they  idso)  shall,  from  time  to  time,  and  at  all  times  necessary,  pre- 
serve my  interest  in  all  my  tenant  rights,  by  duly  paying  the  head- 
rent  due  by  me,  and  coming  out  of  all  my  lands,  to  the  proper 
landlords  able  to  give  good  acquittances  for  the  sum  and  sums 
respectively  paid  to  them  on  the  account  of  such  head-rent ;  and, 
secondly,  that  he  and  they,  my  said  trustees,  shall  duly  pay  and 
satisfy,  to  the  proper  persons,  all  fines  which  shall  have  become  due 
to,  and  remained  claimable  by,  such  persons  respectively,  for  enti- 
tling my  said  trustee  and  trustees  to  obtain  renewal  or  renewals  of 
the  interest  in  any  of  my  said  lands ;  and  that  also  they  shall  duly 
jpay  all  impositions,  taxes  and  duties,  of  what  degree  or  nature 
soever,  lawfully  and  accustomarily  levied  out  of  all  or  singular  my 
sidd  lands,  and  likewise  all  other  necessary  and  usual  burdens  affect- 
ing the  same ;  and,  as  a  mark  of  my  willingness  to  invite  the  said 
William  O'Reilly  to  make  this  trust  not  unworthy  of  his  acceptance. 


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CHANCERY  REPORTS.  21 

I  empower  him  to  take  and  receive,  from  each  and  every  one  of  my        1859* 

tenants  of  my  lands,  or  to  retain  for  his  own  nse,  as  fees  for  HBceiv-     ^-^   v  ■  ^^ 

In  f€ 
ing  my  rents,  the  sum  of  one  shilling  for  every  pound  sterling  paid     u^nau^b. 

as  rent  hy  each  one  of  my  tenants.  I  nominate,  constitute  and 
hereby  appoint  my  said  friend  William  O'Reilly  to  be  sole  executor 
of  this  my  last  will  and  testament ;  and  I  hereby  give  and  bequeath 
unto  him  a  sum  of  one  hundred  pounds  sterling,  as  a  mark  of  my 
confidence  and  faithful  regard :  also  to  my  friend  Edward  Plunkett, 
of  Dunowen,  I  give  and  bequeath  the  sum  of  two  hundred  pounds 
aterling.  I  give  and  bequeath  to  Peter  Keogh,  a  servant  now  em- 
ployed in  my  business,  a  sum  of  thirty  pounds  sterling.  I  give  and 
bequeath  to  Mathew  Cumisky,  my  maternal  uncle,  a  sum  of  one 
hundred  pounds  sterling ;  and  as  to,  for  and  concerning  all  the 
residue  of  my  interest  in  my  said  lands,  and  as  to,  for  and  concem- 
'  ing  the  residue,  similarly,  of  my  other  personal  estate  and  effects, 
but  still  subject  to  the  hereinbefore  trusts  by  this  my  last  will 
declared,  I  hereby  give,  bequeath  and  devise  all  such  residue  of 
my  interest  in  said  lands,  as  also  all  such  the  residue  of  my  personal 
estate  and  effects,  in  trust  for  my  eldest  and  yet  unborn  son,  hfs 
executors  and  administrators ;  but  I  charge  hereby  the  said  lands, 
and  the  said  residue  of  my  said  other  personal  estate  and  effiscts 
(if,  besides  such  eldest  son,  I  shall  have  also  a  younger  child  who 
shall  be  living  after  my  death),  with  the  sum  of  five  hundred  pounds 
for  such  younger  child ;  and,  if  I  shall  beget  two  such  younger  chil- 
dren, I  hereby  charge  my  said  lands,  and  my  said  residue  aforesaid, 
with  the  sum  of  eight  hundred  pounds,  the  same  to  be  equally 
divided,  share  and  share  alike,  between  them,  when  payable  under 
4hk  my  will.  And,  if  I  shall  leave  me  surviving  more  than  two 
younger  children  besides  an  eldest  son,  then  (whatever  may  be  the 
number  of  such  younger  children  above  such  two)  I  charge  my  said 
interest  in  the  said  lands,  and  the  residue  of  my  said  other  personal 
estate,  with  the  sum  of  one  thousand  pounds  sterling,  the  said  sum 
to  be  ^vided,  share  and  share  alike,  amongst  such  younger  children, 
being  more  than  two  in  number,  when  their  legacies  shikll  become 
demondable  and  payable  to  them  under  this  my  will ;  and,  more- 
over, I  mean,  order  and  4iUrect  that,  in  the  event  of  my  leaving  two 


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CHANCERY  REPORTS. 


1869. 
Chn  Appeal. 

In  re 
I.ANAUZE. 

Statement. 


8Qch  younger  children,  as  herein  aforesaid,  as  only  issue,  besides  an 
eldest  son,  the  share  or  legacy  so  meant  for  either  of  them  dying 
unmarried  and  under  the  age  of  twenty-one  years  shall  go  over  and 
survive  to  the  other  of  them  such  two  younger  children  ;  but  it  is, 
notwithstanding,  my  will,  and  I  hereby  also  ordain  that,  in  the 
event  of  my  younger  child  or  children  so  dying  unmarried  and 
under  full  age  (when  the  number  of  such  younger  children  shall 
be  more  than  two),  no  surviving  younger  child  shall,  by  the  death 
of  any  one  or  more  of  them,  under  such  full  age  and  unmarried,  be 
.  entitled  to  receive,  in  any  manner,  more  than  the  sum  of  five  hun- 
dred pounds  ;  but  any  possible  surplus  above  such  ^ve  hundred 
pounds,  for  any  such  child  as  last  mentioned,  shall  not  be  raised,  but 
shall  sink  in  my  interest  in  said  lands  for  their  relief  and  ease.  And 
further,  if  it  happen  that  I  shall  die  leaving  no  son,  but  shall  die 
leaving  an  eldest  or  only  daughter,  then  in  trust,  as  to  all  such  my 
interest  in  the  said  lands,  and  all  the  residue  of  such  my  other  per- 
sonal estate  and  effects  (charged  in  like  manner  as  herein  aforesaid), 
for  such  eldest  or  only  daughter,  her  executors  and  administrators ; 
and,  if  I  shall  leave  no  daughter  me  surviving,  or  if  all  daughters 
me  surviving  shall  happen  to  die  severally  under  the  age  of  twenty- 
one  years  and  unmarried,  then,  and  in  such  event,  I  give,  bequeath 
and  devise  my  interest  in  my  said  lands,  and  all  the  residue  then 
remaining  unadministered  of  my  said  personal  estate  and  effect,  to 
my  nephew  George  Lanauze  (the  appellant),  eldest  son  of  my  late 
brother  William  George  Lanauze,  deceased,  when  and  so  soon  as 
my  said  nephew  George  Lanauze,  aforesaid,  shall  attain  the  age  of 
twenty-one  years ;  but,  if  he  the  said  treorge  Lanauze  shall  die 
without  legally  attaining  such  age,  then  I  give  and  devise  my  inter- 
est in  my  said  lands,  as  also  all  the  residue  of  my  said  other  personal 
estate  and  effects,  to  that  child,  be  it  male  or  female,  of  my  first 
cousin  George  Lanauze  (now  residing  in  the  East  Indies),  son  of  the 
late  Andrew  Lanauze,  of  Carrigan,  in  the  county  of  Cavan  afore- 
said, who  shall  first  attain  the  full  age  of  twenty-one  years ;  but  I 
will,  at  the  same  time,  and  direct  hereby,  that  all  the  intermediate 
rents  and  profits  of  my  said  lands,  as  well  as  of  the  residue  of  my 
said  other  personal  estates  and  effects,  which  shall  accrue,  arise  or  be 


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CHANCERY  REPORTS.  23 

made  out  of  both  the  said  funds  durmg  all  the  period,  number  of        1859* 
years  and  time  which  shall  intervene  between  my  said  nephew's  first     w    y     ■/ 
becoming  the  next  devisee  of  my  said  property,  by  virtue  of  this  my     lanauze. 
will,  until  such  his  death  (if  he  shall  so  chance  to  die  under  the  age 
of  twenty-one  years,  as  lately  supposed),  and  also  all  the  intervemng 
profits  of  the  same  lands,  and  of  all  the  residue  of  my  said  other 
personal  estates,  deriving,  intervening  or  in  any  manner  accruing 
between  the  time  of  the  death  under  age  of  my  said  nephew  George 
Lanauze,  and  the  coming  to  the  age  of  twenty-one  years  as  aforesaid  - 
of  the  eldest  child  of  my  said  first  cousin  George  Lanauze,  now 
residing  in  the  East  Indies,  that  all  the  said  profits,  subject  only  to 
the  provision  made  for  my  said  wife,  Elizabeth  Lanauze,  by  the  said 
deed  of  settlement  so  executed  upon,  or  previously  to,  our  marriage, 
and  to  my  debts  and  funeral  expenses,  and  to  the  several  legacies 
hereinbefore  enumerated,  shaU  go  and  belong  to,  be  retained,  taken 
and  recovered  by  the  said  William  O'Reilly,  to  and  for  his  proper 
use  and  benefit."     Then  followed  a  provision,  empowering  the  trus- 
tee to  make  leases  during  the  minority  of  such  person  as  should,  for 
the  time  being,  be  entitled  under  the  will  to  the  lands  thereby 
devised. 

The  testator  made  a  codicil  to  his.  will,  dated  the  same  day, 
whereby,  in  addition  to  the  legacies  bequeathed  by  the  will,  he 
bequeathed  £60  to  George  Hines. 

The  testator  died  on  the  16th  of  January  1837,  leaving  his 
widow,  Eliza  Lanauze,  afterwards  the  wife  of  Charles  Malone,  and 
one  only  child,  a  daughter,  Mary  Anne  Lanauze,  who  was  thereupon 
entitled,  under  the  will,  to  said  leasehold  interest  in  the  lands. 

On  the  5th  of  February  1842,  an  order  in  Chancery  was  made,  in 
the  matter  of  Mary  Anne  Lanauze  a  minor,  whereby  it  was  referred 
to  the  late  Master  Henn  to  take  an  account,  amongst  other  things, 
of  the  debts,  legacies  and  funeral  and  testamentary  expenses  of  said 
testator,  and  of  the  charges  and  incumbrances  affecting  his  property. 
Under  the  order  of  reference,  four  of  the  legatees,  namely,  William 
O'Reilly,  Edward  Plunkett,  Peter  Eeogh  and  Mathew  Cumiskey, 
filed  charges,  claiming  their  respective  legacies ;  but  George  Hines 
did  not  put  forward  any  claim.     Charles  and  Eliza  Malone,  on 


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CHANCERY  REPORTS. 


1859^ 

CA.  Appeal. 

In  re 
I.AIIAUZK. 


behalf  of  the  minor,  denied  the  fact  of  said  several  legacies  being 
any  charge  or  lien  on  said  lands  of  Kildruinfartin  and  Kilnaleck,  or 
tbd  income  thereof. 

On  the  5th  of  November  1847,  the  Master  made  his  report,  and 
thereby  stated  that  he  had  examined  into  the  matters  referred,  in 
tbe  presence  of  the  respective  claimants ;  and  the  Master  thereby 
found,  amongst  other  things,  several  judgment  and  other  debts 
affecting  the  testator's  property,  and  also  that  the  principal  and 
arreflf  of  interest  were  due  in  each  case  of  the  legacies,  except  that 
Qjk  George  Hines,  inasmuch  as  no  claim  had  been  laid  before  him  in 
regard  thereto;  and  the  Master  directed  the  surplus  of  all  future 
it^Mits  to  be  applied  in  liquidation  of  testator's  debts,  the  several 
legattees  under  the  will  not  being,  in  his  opinion,  entitled  to  any 
portion  .of  said  rents. 

The  several  legatees  took  objections  to  the  Master's  report,  which 
was,  notwithstanding^  confirmed  by  an  order  of  said  Court  of  Chan- 
cery, of  the  10th  of  July  1848,  in  the  same  matter,  made  upon  due 
notice  to  all  of  the  said  legatees,  none  of  whom  Intervened  on  the 
OfDcasion,  or  ever  took  any  further  proceedings  for  the  purpose  of 
disputing  the  decision  of  Master  Henn,  or  took  any  steps  whatever 
for  recovery  of  their  respective  legacies,  until  after  an  absolute  order 
for  sale  of  the  said  lands  had  been  made  in  the  Incumbered  Estates 
Court. 

The  minor,  Mary  Anne  Lanauze,  died  on  the  24th  of  February 
1851,  under  agia  and  unmarried,  whereupon  the  bequest  in  petition- 
er'a  favour  came  into  effect. 

^  After  the  death  of  the  minor,  her  mother,  Eliza  Malone,  continued 
in  possession  of  the  lands,  and  in  receipt  of  the  rents  and  profits,  in 
deroigation  of  the  i^^lant's  rights;  who,  on  the  2nd  of  June  1853, 
filed  a  cause  petition  against  Eliza  and  Charles  Malone ;  and,  by  a 
d^retal  order  in  the  cause  of  Lanauze  v.  Malone^  dated  the  2nd 
of  Pecember  1855,  the  petitioner  was  declcu^  entitled  to  the 
Imids.  The  appellant  entered  into  possession,  and,  on  the  25th  of 
November  1856,  filed  his  petition  in  the  Incumbered  Estates  Court 
for  a  faje  of  said  lands,  for  discharge  of  the  incumbrances  affecting 
them.    Th».  lands  were  sold  on  the  18th  of  January  1859;  and,  on 


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25 


the  settliDg  of  the  final  schedule,  Judge  Longfield  made  an  order, 
declaring,  amongst  other  matters,  that  the  legacies  bequeathed  to 
William  CReillj,  Peter  Eeogh,  Matthew  Cumiskej  and  George 
Hines  were  charged  upon  the  lands  told  in  the  matter ;  and  it  was 
ordered  that  the  legacies  should  l)e  paid,  with  the  arrears  of  interest 
for  six  years  prior  to  the  filing  of  the  petition. 

From  this  order  the  present  appeal  was  now  brought,  upon  the 
ground  that,  upon  the  true  construction  of  the  will  of  John  George 
Lanauze,  the  legacies  in  question  were  not  charged  upon  the  testa- 
tor's chattel  interest  in  the  lands  ;  and  also,  upon  the  ground  that  the 
legatees  were  bound  by  the  report  of  Master  Henn,  confirmed  by  the 
decree  of  1848. 


1859. 
Ch.  Appeal. 
^-     f    ^* 

In  r« 
LANAUZE. 

Stattment. 


^Ir.  BrewiteTy  Mr.  J.  E.  Walsh  and  Mr.  TudoTy  for  the  appellant. 

It  is  admitted  that,  if  a  testator  makes  a  common  fund  of  his 
real  and  personal  property,  and,  aftor  bequeathing  legacies,  then 
bequeaths  the  residue  of  the  whole  common  mass,  every  portion  of 
that  mass  is  subject  to  the  legacies.  But  the  testator,  in  the  present 
case,  has  adopted  an  entirely  opposite  course ;  for  he  has  carefully 
kept  the  t#o  funds  distinct  throughout  the  entire  will.  In  such  a 
case,  a  money  le^tee  cannot  have  recourse,  for  payment  of  a  legacy, 
to  a  chattel  real  specifically  devised :  Davis  v.  Gardiner  (a).  The 
testator  here  had  a  perfectly  legitimate  reason  for  dividing  his  pro- 
perty into  two  classes,  and  keeping  them  distinct.  He  had  already, 
by  his  marriage  settlement,  made  provision  for  his  wife,  but  not  for 
children,  and  he  was  now  by  his  will  about  to  provide  for  his  child ; 
and  it  is  not  likely  to  have  been  his  intention  that  his  child  should 
not  have  his  ob&ttel  interest  in  the  lands  until  the  legacies  had  been 
satisfied  out  of  it,  a  course  which  might  have  left  her  penniless.  But 
this  matter  wad  In  fact  res  judicata.  The  report  of  Master  Henn  in  ' 
1846,  confirmed  by  the  decree  of  1848,  was  the  decision  of  a  Court 
of  competent  jurisdiction,  by  which  the  parties  are  now  bound. 


Arffumeni. 


Mr.  Sherlock  and  Mr.  Bamill,  for  Myles  William  O'Reilly,  the 
personal  representative  of  the  executor. 

(a)  2  P.  W.  187. 
VOL.  11.  4 


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CHANCERY  REPORTS. 


1859. 
Ch,  AppeaL 

In  re 
LANAUZE. 

Argument, 


Mr.  F.  Walshe  and  Mr.  Purcell,  for  Greorge  Hines»  one  of  the 
legatees,  and — 

Mr.  John  J7.  Richards^  for  another  legatee. 

The  legal  intention  of  the  testator  was  to  charge  the  legacies 
upon  his  interest  in  the  lands:  Greville  v.  Brown  {a)  \  Scott  v. 
Clements  (b).  Master  Henn's  report  is  not  an  estoppel.  If  the 
Judge  in  the  Landed  Estates  Court  thought  the  decision  of  the 
Master  erroneous,  he  was  not  bound  by  it,  nor  are  his  legatees: 
In  re  Kelly  {c). — [The  Lord  Justice  of  Appeal.  That  was 
the  case  of  a  decree  prp  confesso. — The  Lobd  Chancellor.  It 
would  tie  the  most  inconvenient  thing  possible  if,  after  a  report  such 
as  that  made  by  Master  Henn  in  this  case,  the  parties  come  forward 
now  to  establish  their  claims]. 


The  Lord  Chancellor. 

Judgment.  j^  my  opinion,  it  is  very  plain,  on  the  construction  of  this  will, 

that  the  legacies  are  not  charged  upon  the  chattel  interest,  which 
has  been  specifically  devised.  This  was  a  particular  case.  The 
testator  was  possessed  of  a  chattel  interest  in  land,  and  also  of  other 
property  of  a  purely  personal  character ;  and  he  devised  the  chattel 
interest  specifically^  for  a  distinct  purpose,  in  the  first  instance,  and 
then  he  devised  the  rest  to  a  trustee,  William  O'Reilly,  upon  trusts 
which  he  specified ;  and  the  very  first  of  those  trusts  was,  not  to 
admiilister  all  the  propeii;y  in  one  common  fund,  but  to  preserve  all 
his  interests  in  his  tenant  rights,  by  payment  of^  head-rent  due  by 
him,  and  to  pay  the  renewal  fines,  and  all  taxes  and  duties  levied 
out  of  the  lands,  and  so  on.  He  then  gives  the  trustee  £5  per  cent, 
on  the  rents  received  by  him,  thereby  showing  that  he  meant  hip  to 
possess  this  chattel  interest  free  from  the^  legacies.  Having  done 
that,  he  then  nominates  the  same  William  O'Reilly  his  executor,  and 
gives  him  a  legacy  of  £100,  as  a  mark  of  his  co;ifidence  and  regard, 
and  he  then  bequeaths  the  legacies  now  in  question.    Now,  if  the 

'  other  legacies  were  charged  on  the  chattel  interest,  so  was  the 

legacy  bequeathed  to  O'Reilly ;  and  it  certainly  would  have  been  a 

(a)  5  Jut.,  N.  S.,  849.  (6)  8  Ir.  Chan,  Rep.  I. 

(c)  9  Ir.  Chan.  Rep.  103. 


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CHANCERY  REPORTS.  27 

strange  inconsistency  on  the  part  of  the  testator  to  direct  O'Reilly  to 


1859. 

CA.  Appeal, 


In  re 


preserve  the  chattel  interest  in  the  way  th^  testator  has  directed, 
and  then  to  give  him  a  legacy  charged  on  that  same  chattel  interest,  lanauze. 
which  would  enable  him  to  sell  the  property  for  the  payment  of  that  .  -^ 
legacy.  All  through  his  will  the  testator  has  taken  care  to  keep  a 
distinct  line  between  his  chattel  interest  and  the  rest  of  his  personal 
property.  He  then  devises  the  residue  of  his  property  in  the  follow- 
ing way  :-t"  And  as  to,  for  and  concerning  all  the  residue  of  my 
interest  in  my  said  lands,  and  as  to,  for  and  concerning  the  residue 
similarly  of  my  other  personal  estate  and  effects,  but  still  subject  to 
the  hereinbefore  trusts,  by  this  my  last  will  and  deed,  I  hereby  give, 
bequeath  and  devise  all  such  residue  of  my  interest  in  said  lands,  as 
also  all  such  the  residue  of  my  personal  estate  and  effects,  in  trust 
for  my  eldest  and  unborn  son ; "  but  he  charges  *'  the  said  lands,  and 
the  said  residue  of  my  said  other  personal  estate  and  effects  "  with 
certain  charges  for  younger  children,  which  charges  he  calls  legacies. 
Kow,  if  the  testator  supposed  that  the  legacies  given  by  his  will 
would  have  been  charges  on  the  chattel  property,  there  would  have 
been  no  need  for  him  to  give  this  specific  direction  as  to  the  charges  , 

or  legacies  for  his  youngeir  children.  There  is  not  a  single  clause  in 
[this  will  making  this  chattel  interest  into  a  common  fund.  Master 
Henn's  decision  is  an  authority  for  the  opposite  view.  I  am,  for  my 
part,  quite  satisfied  to  abide  by  the  older  decision  of  the  ofiicer  of 
this  Court,  although  it  does  happen  that  a  Judge  of  the  Landed 
Estates  Court  has  come  to  a  different  conclusion.  It  is  said  that 
the  decisions  of  the  Court  of  Chancery  in  minor  matters  are  not 
binding.  Perhaps  that  may  be  true,  in  a  certain  sense,  inasmuch 
as  the  minor  would  not  be  bound,  if  he  did  not  choose  to  adopt  the 
decision.  Lord  Manners  refused.  In  re  Burke  a  minor  (a),  to  allow 
executors,  on  motion^  to  account  before  the  Master  for  property 
which  the  testator  had  bequeathed  to  minors,  on  the  ground  that 
the  account  so<  taken  would  not  be  binding  on  the  minors,  there 
•being  no  suit  pending  in  Court  to  which  they  were  parties.  But, 
if  the  minor  does  adopt  such  decision,  it  then,  I  apprehend,  becomes 
binding  upon  all  parties ;  and,  unquestionably,  \^here  parties  have 

(a)  1  B.  &  B.  74. 


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CHANCERY  REPORTS. 


1859. 
Ch,  AppeaL 

^     In  re 
JLANACZE. 

Judgment. 


thus  come  before  the  Master^  and  have  acquiesced  in  his  decision, 
wliich  the  minor  has  also  adopted,  it  would  require  a  strong  author- 
ity to  induce  me  to  hold  that  they  are  not  bound  thereby. 

It  has  been  urged  that  the  Judges  of  the  Landed  Estates  Court 
have  power  to  investigate  a  decree  of  the  Court  of  Chancery,  and  to 
refuse  to  act  upon.it,  if  they  come  to  the  conclusion  that  it  was 
erroneous ;  and  the  decision  in  Kelfy  v.  Kelfy  (a)  has  b^n  cited  in 
support  of  that  proposition.  Kelfy  y.  Kelfy  does  not  decide  any 
such  thing,  and,  if  any  idea  to  that  effect  exists,  the  sooner  such  an 
idea  is  dispelled  the  better.  The  decree  in  Kelfy  v.  Kelfy^  in  the 
Court  of  Chancery,  was  a  decree />ro  confesso^  which  b  always  of  an 
ex  parte  character ;  moreover,  it  was  a  decree  for  a  receiver ;  but 
no  sale  of  the  lands  was  ordered.  The  Commissioners  of  the 
Incumbered  Estates  Court  had  full  power  to  construe  that  decree, 
and  tliat  was  all  they  did;  it  was  merely  the  case  of  putting  a 
construction  on  a  decree.  The  Loud  Justice  of  Appeal,  in  his 
judgment,  confined  himself  to  that  point.  There  is  a  great 'deal  of 
other  matter  in  the  report,  which  may  perhaps  be  considered  as 
extra-judicial,  and  by  which  I  certainly  should  not  feel  myself 
bound,  if  it  means  that  the  Judges  of  the  Landed  Estates  Court 
have  authority  to  examine  and  go  behind  a  final  decree  of  the  Court 
of  Chancery.  The  42nd  section  of  the  Incumbered  Estates  Court 
Act  (12  &  13  Via^  c.  77)  plainly  shows  that  where  there  is  a  final 
decree  of  the  Court  of  Chancery,  which  would  be  binding  on  the 
parties  in  this  Court,  that  decree  would  be  equally  binding  on  the 
Commissioners  of  the  Incumbered  Estates  Court.  I  do  not  think 
that,  upon  such  a  decree  of  the  Court  of  Chancery,  any  question 
can  even  be  raised  in  the  Landed  Estates  Court,  except  for  the 
purpose  of  construing  that  decree ;  and  I  am  quite  sure  that,  in 
Kelfy  V.  Kelly ^  the  Commissioners  of  the  Incumbered  Estates  Court 
did  not  mean  to  do  anything  more.  The  ruling  of  the  Court  below 
must  be  reversed. 


The  LoBD  Justice  of  Appeal. 

I  entirely  concur  in  the  construction  which  has  been  given  to  the 

(a)  9  Ir.  Chan.  Bep.  103. 


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^9 


will  by  the  Lobd  ChanceLuor;  and  I  shall  only  add  that,  with  1859. 
respect  to  the  case  of  Keliy  y.  KeUij,  all  that  was  dotoe  by  the  ^^'^PP^^{' 
decree  of  the  Court  of  Chancery  was  to  appoint  a  receiver,  and 
the  Incumbered  Estates  Court  construed  tliat  to  be  a  decree  for 
a  sale.  This  Court  merely  reversed  the  construction  which  the 
Commissioners  of  the  Incumbered  Estates  Court  had  given  to  the 
decree  of  the  Court  of  Chancery. 


Ih  re 
LANAUZE. 

JadymenL 


In  re  HARDING'S  ESTATE. 


1860. 


Bt  indenture  of  20th  of  July  1765,  Theobald  Wolfe  demised  to  By  deed  of 

William  Harding  the  lands  of  Derryhiney  otherwise  Castlefarm,  at  ed  a'perpetual 

a  yearly  rent,  for  three  lives  renewable  for  ever.  charge  "of 

By  deed  of  20th  of  July  1769,  made  between  the  said  William  ^ut^f^^ 

Harding  and  Henry  Harding  his  eldest  son,  of  the  first  part,  George  Mm  Vot  *tfii^ 

Harden  and  Anne  Harden  his  daughter,  of  the^second  part,  William  HT^*  P®n>^ 

Harden  and  Thomas  Gee,  of  the  third  part,  being  the  settlement  That  deed  was 

^  lost ;  but  It  ap- 

executed  on  the  marriage  of  said  Henry  Harding  with  said  Anne  P«&red>  from  a 

memorial 
Harden,  said  William  Harding  (among  other  things)  granted  a  per-  thereof,  that  A 

had  graoted  to 
petual  yearly  rentcharge  i)f  £134  of  the  then  cuiTcncy  of  Ireland,  to*  B  and  C,  for 

be  issuing  and  payable  out  of  said  lands.  tioned  in  i&e 

The  petition  of  appeal  stated  that  this  deed  was  not  forthcoming,  rentchai^e   of 

and  could  Jiot  be  procured,  notwithstanding  diligent  search ;  but  that  ifs^g^^out^f 

it  appeared,  from  the  memorial  thereof,  that  William  Harding,  for  The"reit-"^ 

the  considerations  therein  mentioned,  had  granted  and  confirmed  c^i?J8®  ^«f 

°  paid   by  the 

onto  William  Harden  and  lliomas  Gee  (trustees),  for  the  uses  and  owners  of  the 

lands    from 
purposes  in  said  deed  mentioned,  u  yearly  rentcharge  of  £134,  for  1769  down  to 

ever,  to  be  issuing  out  of  the  said  lands.  .        petition  was 

presented    to 
tlie   Landed 
Estates  Court  for  a  sale  of  the  rentcharge. — Held  (oyerroling  a  decision  of  a  J^dge 
of  the  Landed  Estates  Conrt),  that  the  memorial,  coupled  with  eTidence  of  the  pay- 
ment of  the  rentcharge  down  to  1861 1,  was  sufficient  evidence  of  a  perpetual  subsist- 
ing rentcharge,  so  ais  to  enable  the  Court  to  sell. 


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CHANCERY  REPORTS. 


1860. 
Ch.  Appeal, 

In  re 
HARDING. 

Statement. 


William  Harden,  one  of  the  trustees  in  the  deed  of  1769,  died  on 
the  11th  of  August  1779,  and  Thomas  Gee,  the  other  trustee,  died 
in  1785. 

By  articles  of  agreement,  dated  the  9th  of  July  1792,  and  exe- 
cuted on  the  marriage  of  William  Harding,  the  eldest  son  of  said 
Henry  Harding,  with  Miss  Elizabeth  Holmes,  made  between  said 
George  Harden,  of  the  first  part,  said  William  Harding,  of  the 
second  part,  said  Elizabeth  Holmes,  of  the  third  part,  and  Peter 
Holmes,  jun.,  Alexander  Holmes,  Samuel  Middleton  and  William 
Poe,  of  the  fourth  part,  it  was,  among  other  things,  recited,  that 
said  William  Harding  was  entitled  to  said  rentcharge,  which  .was 
therein  described  as  "the  perpetual  rentcharge  of  £134,  chargeable 
and  issuing  out  of  said  Castlefarm  of  Derrihiney  ; "  and  same  was, 
with  certain  lands  therein  mentioned,  settled  to  the  use  of  said 
William  Harding  for  life,  with  remainder,  subject  to  a  jointure  of 
£200  a-year  for  G^id  Elizabeth,  to  the  use  of  William  Poe  and 
Samuel  Middleton,  for  a  term  of  200  years,  the  trusts  of  which  term 
were  thereby  declared  to  be  to  raise,  in  the  manner  therein  men- 
tioned, a  sum  of  £2000,  as  portions  for  the  younger  children  of  said 
marriage.  There  was  issue  of  this  marriage  an  eldest  son,  George 
Harding,  and  eight  younger  children,  of  whom  the  appellant  was 
one. 

William  Harding,  who  was  the  grantor  of  said  rentcharge,  and 
owner  of  said  lands  whereon  same  was  charged,  and  who  regularly 
paid  said  rentcharge  during  his  life,  by  his  will,  dated  the  1 3th  day 
of  March  1773,  devised  all  his  estate  in  said  lands  to  his  second 
son,  Jonathan  Harding,  and  died  previous  to  the  year  1777,  leaving 
said  Jonathan  surviving,  who  thereupon  entered  into  possession  of 
said  lands,  and  thenceforth  during  his  life  regularly  paid  the.  rent- 
charge.  He  died  in  1815,  leaving  Jonathan  Harding  his  eldest  son 
and  heir-at-law,  who  thereupon  entered  into  and  continued,  and  was 
at  the  time  of  this  appeal,  in  possession  and  receipt  of  the  rents  and 
profits  of  the  lands,  and  had  regularly  paid  the  rentcharge.  By  his 
marriage  settlement,  dated  the  18th  of  July  1816,  the  lands  in  ques- 
tion were  conveyed  to  the  use  of  Jonathan  Harding  for  life,  with 
remainder,  subject  to  a  jointure,  to  the  use  of  the  issue  of  the 


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marriage,  in  such  shares  and  proportions  as  he  should  by  deed  or         1860. 

Ch.  Appeal. 

wUl  appoint.  — — V ' 

In  re 
By  deed  of  appointment,  dated  the  27th  day  of  March  1834,     harding. 

which  recited  the  last  mentioned  settlement,  and  the  power  given  « "J  . 
thereby,  Jonathan  Harding  appointed  one  undivided  third  part  of 
the  lands  to  the  use  of  Frances  Harding,  his  daughter,  and  her 
heirs,  for  ever,  and  thereby  declared  and  appointed  *'  that  the  only 
incumbrance  to  be  paid  out  of  said  third  part  of  said  lands  thereby 
appointed  shall  be,  one-third  of  an  annuity  or  yearly  rentcharge 
of  £134  late  currency,  now  affecting  and  charged  on  said  lands.'^ 
The^rentcharge  had  thus  been  regularly  paid  by  the  owners  of  the 
lands  from  the  year  1769.  , 

From  the  year  1777  to  the  year  1815,  the  lands  were  held  by 
Jonathan  Harding,^  second  son  of  William  Harding,  the  lessee  in 
said  lease,  and  grantor  in  the  deed  of  1769,  as  owner  in  quasi  fee, 
and  were  not,  during  that  period,  affected  by  settlement,  but  de- 
scended to  his  eldest  son,  Jonathan  Harding,  as  his  heir-at-law. 
A  petition  having  been  presented  by  Peter  Holmes  Harding,  the 
appellant,  to  the  Landed  Estates  Court,  for  sale  of  the  rentcharge, 
for  discharge  of  the  incumbrances  affecting  it.  Judge  Dobbs,  on 
the  14th  day  of  May  1860,  made  an  order  declaring  that  there  was 
not  sufficient  evidence  that  the  rentcharge  of  £134  was  then  a 
subsisting  rentcharge,  inasmuch  as  the  memorial  of  said  deed  was 
the  only  evidence  of  its  contents  laid  before  the  Court;  and 
it  appeared  that  the  rentcharge  was  not  then  a  charge  on  the 
lands,  having  expired  on  the  death  of  the  survivor  of  the  grantees, 
William  Harden  and  Thomas  Gree ;  and  the  Court  declined  to  ap- 
prove of  the  title  to  the  said  rentcharge  as  a  good  title,  until  further 
and  sufficient  evidence  should  be  produced,  that  the  same  was  then  a 
subsisting- rentcharge  on  said  lands. 

From  this  order  Peter  Holmes  Harding  now  appealed ;  on  the 
grounds,  first,  that  the  memorial  of  the  deed  of  1769  was  good 
secondary  evidence  that  a  perpetual  yearly  rentcharge  of  £134  was 
granted  by  said  deed,  and  was  thereby  charged  on  said  lands.  Secondly, 
that  the  memorial,  coupled  with  evidence  of  the  uninterrupted 
receipt  of  the  rentcharge,  from  the  execution  of  the  deed  of  1769  to 


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CHANCERY  REPORTS. 


1860.        the  time  of  presenting  the  petition,  hy  the  persons  claiming  under 
«   vJ^.^£!!L     the  deed,  was  good ;  secondary  evidence  of  a  perpetual  rentcharge 
having  been  thereby  created,  and  of  such  rentcharge  being  still  sub- 
sisting. 


In  re 
HARDING. 


Staiemmt^ 


ArgtimenU 


Mr.  Serjeant  Lawson  and  Mr.  E.  M.  Kelly ^  for  the  appellant 
Under  the  43rd  section  of  the  Landed  Estates  Act  (21  and  22 
Vic.  c.  72)  the  Court  had  clearly  jurisdiction  to  sell.  The  memorial 
of  the  deed  of  1 769»  coupled  with  the  evidence  of  payment  of  the 
rentcharge  since  then  down  to  tlie  present  time,  made  by  parties 
whose  interest  it  was  to  resist  this  claim,  is  ample  evidence  thfX  it 
was  a  perpetual  rentcharge,  still  subsisting.  Sadlier  v.  Biggs  (a) 
is  in  point.  In  that  case.  Lord  Cran worth  in  his  judgment  said 
(p.  455) : — *^  It  appears  to  me  that  there  are  the  most  satisfactory 
circumstances  tending  to  show  what  the  rights  of  the  parties  are : 
these  are,  long  enjoyment,  the  same  dealing  with  the  property  for 
a  very  great  period,  during  the  whole  of  which  it  was  the  interest 
of  one  party  to  resbt  that  which,  nevertheless,  he  from  time  to 
time  performed." 

There  was  no  appearance  in  support  of  the  order  of  the  Court 
below. 


The  Lord  Chancellor.  . 
Judgment.  ^^  ^  clearly  a  mistake  tOi  say  that  the  memorial  is  the  only  evidence, 

for  the  payment  of  the  rentcharge  during  so  long  a  period  is  cer- 
tainly evidence  also.  We  are  of  opinion  that  there  is  evidence  in 
this  case  for  a  perpetuiEd  ^subsisting  rentcharge,  quite  sufficient  to 
warrant  the  Court  in  aelling.  The  order  of  the  Court  below  must, 
therefore,  be  reversed. . .    , 

The  Lord  Justice  of  Appeal  concurred, 
(a)  4  H.  L.  C.  435. 


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1859. 
Chancery, 


MALONE  V.  HARRIS. 

(In  Chtincery,) 

June  3,  8,  16. 

This  case  came  before  the  Court  upon  a  cause  petition  and  affida-  ^^®  owners  of 

a  theatre,    by 

vits.     The  following    were   the   material  facts  of  the  case: — By  deed    bearing 

date  in  1839, 

letters    patent   of  the   16th   of  May  1820,  made  in  pursuance   of  made  for  yaln- 

26  G.  3,  c.  57  (Ir.)^  the  Crown  empowered  Henry  Harris  to  estab-  tion,  covenant- 

lish  a  theatre  in  Dublin.   Henry  Harris  proceeded  to  erect  a  theatre'  to  certain  d^ 

in  Hawkins'-street  in  the  city  of  Dublin ;  and  by  deed  of  the  4th  ^^^  p^^ 

February  1822,  he  assigned  to  William  Moore  and  William  Lau-  lege  of  free  ad. 

•^  '  ^  mission  to  the 

rence  Bicknell  the  Hawkins'-street  premises  and  the  letters  patent,  th'totre.     The 

petitioner  waa. 
upon  trust  to  secure  the  payment  to  George  Bicknell  of  two  an-  entitled,  as  one 

of  the  deben- 
nuities  of  £700  and  £300  per  annum  respectively,  which  were  therein  tore  holders,  to 

granted.     New  letters  patent  -were  subsequently  obtained,  on  the  the    deed    of 

surrender  of  those  of  the  15th  of  May  1820,  and  the  new  patent  and  sequenthr*  bst 

the  Hawkins'-street  premises  were  duly  vested  in  Samuel  Beasley  and  ^i^[  ST"^' 

William  Laurence  Bicknell,  in  trust  to  secure  the  said  annuities  to  ^P***^*!?^'    be- 
came lessee  of 
George  BickneD.  «he    theatre, 

'  with  notice  of 
On  or  about  the  1st  of  November  1820,  Henry  Harris,  in  order  to  the    deed    of 

1839.  — ire% 
.raise  the  sum  of  £10,000,    proposed  to    issue  fifty  debentures  for  that  the  peti- 

£200  each,  such  debentures  to  be  chargeable  upon  the  theatre,  the  entitled  specip 

patent,  and  the  theatrical  property,  to  carry  interest  at  the  rate  of  f^^  agaiMt 

£3  per  cent,  per  annum,  and  to  confer  on  the  holder  of  each  deben-  [hep^egeof 

ture   a  right  to  a  free   ticket   of  admbsion,   transferable- at    the  free  admission 
^  '  created  bv  the 

commencement  of  each  season.  Many  of  such  debentures  were  deed  of  1839. 
accordingly  issued.  In  1825,  Henry  Harris,  by  deed,  conveyed  all  Suuemenu 
his  interest  in  the  theatre,  &c.,  to  trustees  for  the  debenture  holders. 
This  deed  contained  a  schedule  of  the  debenture  holders,  amongst 
whom  the  petitioner  was  included  as  holder  of  one.  In  1826,  the 
petitioner  purchased  a  second  debenture,  and  received  a  certificate 
as  entitled  to  the  benefit  of  the  two. 

VOL.    11.  5 


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CHANCERY  REPORTS. 


1869. 
Chancery. 


Statement, 


On  the  3l6t  of  May  1839,  in  consequence  of  difficulties  which  had 
arisen  respecting  the  debenture  holders,  their  rights  and  priyileges, 
a  deed  was  executed,  of  that  date,  between  Henry  Harris  of  the  first 
part,  the  representatives  of  the  said  George  Bicknell  of  the  second 
part,  the  said  Samuel  ^Beasley  and  William  Laurence  Bicknell  of 
the  third  part,  George  WUliam  Bicknell  of  the  fourth  part,  John 
William  Cole  of  the  fifth  part,  and  the  debenture  holders  who 
should  execute  the  same  of  the  sixth  part.  The  petitioner  was  one 
of  the  executing  debenture  holders.  By  this  deed  the  debenture 
holders  released  all  claims  for  interest  on  their  debentures ;  and  in 
consideration  of  this  it  was  provided  that  the  holders  of  debentures 
should  have  a  right  to  free  admission  to  the  theatre  for  themselves, 
'  and  should  also  have  a  right  to  issue  certain  tickets  for  free  admission 
for  others. 

The  respondent,  John  Harris,  obtained  a  lease  of  the  theatre 
from  the  representatives  of  Greorge  Bicknell,  with  full  knowledge 
of  the  deed  of  1839 ;  and  on  the  24th  of  September  1854,  he  issued  a 
circular  by  which  he  required  the  debenture  holders  to  produce 
their  debentures  for  inspection,  in  order  that  the  names  of  the  holders 
might  be  registered. 

The  petitioner  alleged  that  he  had  lost  his  debentures,  and  was 
consequently  unable  to  produce  them.  The  respondent  then  refused 
to  permit  the  petitioner  to  exercise  any  of  the  privileges  of  a  de* 
benture  holder,  and  the  petitioner  brought  an  action  in  the  Court 
of  Queen's  Bsnch  against  the  respondent  for  such  refusal,  which* 
terminated  in  a  vei*dict  and  jtldgment  for  the  respondent.  The 
petition  prayed  for  a  declaration  that  he  was  entitled  to  the  two  de- 
bentures and  the  privileges  flowing  from  them,  and  that  the  re- 
spondent might  be  restrained  from  obstructing  the  exercise  of  the 
rights  conferred  by  deed  of  the  31st  of  May  1839,  on  the  petitioner, 
as  a  debenture  holder. 


Mr.  Hughes,  Mr.  Robinson  and  Mr.  Purcell,  for  the  petitioner. 
Argument,  ^^  ^^^^  ^^  remedy  at  Law,  considering  the  form  of  this  deed  and 

the  title  of  Harris.     The  debenture  or  scrip  itself  could  confer  no 


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right  of  entry  on  anyone.  Taylor  v.  Watson  (a),  as  explained  and 
modified  by  Wood  v.  LeadbiUer  {b\  Duke  of  Devonshire  v.  Eglin  {c\ 
and  Powell  v.  Tkomas  (d)^  show  how  the  Court  will  assist  a  merely 
eqnitable  right  grounded  on  acquiescence.  The  respondent  himself 
has  neyer  disputed  our  right,  provided  we  produce  the  particular  evi- 
dence of  it  which  he  requires.  In  the  year  18399  great  pains  were 
taken  by  the  then  lessee,  with  whom  the  present  respondent  is  in 
privity,  to  find  the  real  owners  of  the  debentures,  and  the  peti- 
tioner's right  was  then  admitted.  There  has  been,  therefore,  a  con- 
tinued user  of  this  right  during  all  this  time ;  and  the  i*cspondent 
admits  that  on  his  purchase  he  knew  of  the  claim,  and  of  the  deed 
of  1839»  by  which  the  owners  of  the  legal  estate  in  the  theatre 
covenanted  that  the  petitioner  and  persons  situated  like  him  should 
have  a  right  of  entering.  Such  a  covenant  will  be  enforced  in 
Equity,  whether  at  Law  it  runs  with  the  land  or  not :  Tulk  v.  Mox- 
kay{e). 


1859. 
Chancery, 


Argmuni, 


Mr.  Brewster  and  Mr.  Exham^  contra. 

In  this  case  the  question  between  the  parties  is  concluded  by  the 
decision  in  the  Common  Law  Court.  The  principle  of  Tulk  v. 
Moxkay  does  not  apply.  That  certainly  does  decide  that,  in  a 
certain  class  of  cases,  this  Court  will  give  relief  to  a  covenantee, 
without  reference  to  the  question  whether  at  Law  his  covenant  would 
run  with  the  land  or  not :  but  these  are  all  cjtses  where  there  is  a 
stipulation  with  the  owner  or  lessee  of  certain  property,  that  certain 
neighbouring  property  shall  be  or  shall  not  be  used  in  some  parti- 
cular way,  as  in  that  very  case  of  Tulk  v.  Molehay  (f)^  where  the 
agreement  Was  to  keep  a  square  garden  in  a  neat  state  ;  or  the  cases 
of  Whatman  v.  Gibson  (g),  Schreier  v.  Creed  (h\  and  Mann  v. 
Stephens  (i),  where  there  were  covenants  respecting  building.  These 
depend  on  the  injury  to  the  covenantor  being  incapable  of  compen- 
sation by  damages,  and  the  right  confeiTed  being  much  in  the  nature 

(a)  7  Taont.  874.  (6)  13  M.  &  W.  83a 

(c)  14  Bcav.  530.  (<0  6  ^^'  300. 

(0,2  PbiL  774;  S.  C.  18  Law  Jonr.,  Ch^  N.  a,  83. 
092Phn.777.  0^)9SiiiL  196. 

(A)  10  Sim.  85.  (0  15  Sim.  879. 


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CHANCERY  REPORTS. 


1869. 
Chancery. 


ArgwmeiU. 


of  a  covenant.  It  is  not,  however,  laying  down  the  rule  too  broadly 
to  say  that  where  damages  will  compensate,  as  they  will  here,  for 
the  loss  is  only  the  price  of  admission,  this  Court  will  not  interfere. 
The  contract  here  is  so  merely  personal,  that  it  is  not  a  case  for 
specific  performance :  Attorney-General  v.  The  Sheffield  Gas  Con* 
sumers*  Company  (a) ;  Keppel  v.  Bailey  (b) ;  Collins  v.  Plumb  (c). 


The  Lord  Chancellor. 
Judgment.  The  claim  of  the  petitioner  in  this  salt  is  not  to  realise  a  pecuniary 

demand.  This  has  been  expressly  relinquished ;  the  suit  is  alto- 
gether confined  to  the  assertion  of  the  right  of  free  admission  to  the 
Theatre  Boyal  for  the  petitioner  and  others,  under  his  orders,  by 
virtue  of  the  deed  of  1839,  referred  to  in  the  petition.  The  re- 
spondent is  not  a  party  to  this  deed ;  he  is  not  in  privity  with  the 
petitioner,  either  by  estate  or  by  contract,  and  the  petitioner  has 
failed  to  establish  his  alleged  right  at  Law,  which  has  been  dis- 
affirmed in  the  action.  His  present  demand  is,  therefore,  consequent 
on  the  disaffirmance,  not  on  the  establishment,  of  a  legal  right  By 
the  judgment  at  Law  he  is  now  concluded  in  the  several  matters 
which  were  expressly  put  in  issue  in  the  action  ;  the  findings  of  the 
jury  and  the  judgment  of  the  Court  of  Queen's  Bench  are  matters 
of  record,  and  not  open  to  be  controverted.  How  then  could  I  de- 
clare the  petitioner  to  be  the  owner  and  proprietor  of  the  debentures, 
or  make  any  other  declaration  of  right,  in  defiance  and  denial  of  the 
judgment  at  Law  ?  Supposing,  however,  that  this  barrier  could  be 
removed,  and  that,  on  the  true  construction  of  the;  deed  of  1839»  I 
might  hold  that  the  personal  right  of  the  petitioner  was  secured  by 
covenant,  can  I  say  that  this  covenant  is  so  binding  in  Equity  on 
the  present  respondent  that  I  could  graitt  the  relief  sought  by  the 
petitioner  ? 

It  could  not  be  said  that  there  is  to  be  found  in  this  deed 
any  covenant  running  with  the  land  on  which  the  theatre  had 
been  built.  Has  any  equity  been  fastened  on  the  premises  by  the 
lessors  of  the  lease  under  which  the  respondent  derives  ?    In  my 

(a)  3  De  G.,  M.  &  Gor.  320.  (6)  2  M.  &  K.  547. 

(c)  16  Ves,  454. 


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opinion  there  has  not ;  the  privilege  conferred,  and  the  provi- 
sions by  which  such  privilege  is  secured,  are  simply  personal,  and  the 
respondent  onght  not  to  be  bonnd  by  obligations  which  he  has  not 
contracted  to  fulfiL  The  cases  which  were  cited  on  behalf  of  the 
petitioner,  with  a  view  to  famish  a  principle  for  my  guidance,  do 
not  seem  to  me  to  be  at  all  applicable  to  the  facts  of  this  case.  In 
one  of  them,  The  Duke  of  Devonshire  y.  Eglin(a)f  there  was  a 
complete  executed  agreement,  which  had  been  made  for  valuable 
consideration,  the  benefit  of  which  had  been  enjoyed  for  upwards  of 
ten  years,  and  one  party  could  not  be  allowed  to  defraud  the  other 
of  the  advantage  of  the  contract.  Equity  will  sometimes  mature 
partial  into  complete  performance,  and  will  not  allow  what  has  been 
done  in  good  faith  to  be  undone  against  good  faith.  Where  the 
parties  cannot  be  restored  to  their  original  relative  position,  neither 
party  will  be  allowed  to  rescind  the  contract,  against  the  will  and 
to  the  prejudice  of  the  other. ,  Where  part  performance  ought  to  be 
completed,  complete  performance^  ought  not  to  be  rescinded.  The 
case  of  Powell  v.  Thonuu  (b)  is  open  to  a  like  comment.  Indeed 
there  is  a  class  of  cases  well  known,  in  which  a  person  who  may  be 
said  to  have  encouraged  an  act  to  be  done  cannot  afterwards  be 
allowed  to  interfere  with  the  enjoyment  of  what  he  has  thus  deli- 
berately sanctioned ;  he  shall  not  derogate  from  the  just  and  full 
effik^t  of  that  acquiescence,  which  must  be  supposed  to  have  been 
intended,  as  it  was  calculated,  to  induce  the  doing  of  the  act,  which, 
when  done,  is  complete  and  irreversible. 

It  occurred  to  me,  after  the  case  had  been  argued,  that  it 
was  deserving  of  consideration  whether  the  doctrine  of  Tulk 
V.  Moxhay{c)y  and  the  cases  of  the  same  class,  might  not  be 
applicable,  and  I  brought  these  under  the  notice  of  the  Bar, 
so  as  to  afford  an  opportunity  for  any  comment  which  might 
seem  proper.  I  am  well  satisfied  that  a  Judge  should  never  decide 
a  case  on  any  ground  not  noticed  at  the  Bar,  nor  on  any  authority 
which  he  may  have  discovered,  without  giving  the  Counsel  in  the 
cause  the  fullest  opportunity  of  offering  such  observations'  as  they 
think  the  matter  may  require.    I  derived  much  assistance  from  the 

(a)  14  Beav.  530.  (6)  6  Hare.  300.     - 

(c)  2  PhiL  774. 


1859. 
Chancery, 


Judgment, 


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1869* 
Chancery, 


Judgment, 


comment  of  Mr.  Brewster  on  the  class  of  cases  to  which  I  have  just 
adverted,  and  to  which  exclusivelj  lie  confined  Iiimself  in  the  second 
argument  which  I  heanl.  These  cases  establish  this,  that  there  may 
be  an  equity  affecting  the  land  and  flowing  out  of  a  covenant,  which, 
through  the  medium  of  notice,  may  affect  the  conscience  of  a  party 
who  would  not  be  bound  at  Law  Ity  privity  of  estate  or  of  contract. 
The  reason  of  this  rule  of  Equity  is  explained  by  Lord  St.  Leonards 
in  the  Treatise  on  Vendors  (a). 

In  tlie  well-known  judgment  of  Lord  Brougham,  in  Keppel  v. 
Bailey  {b\  an  instructive  exposition  is  given  of  the  doctrine  of 
binding  an  estate  by  covenants ;  in  connection  with  this,  the  valu- 
able comment  of  Lord  St.  Leonards  should  be  read.  It  is  not 
by  reason  of  notice  simply  and  merely  that  a  covenant  is  made 
to  bind  in  Equity;  there  must  be  an  equity  so  annexed  to  the 
land  that  the  covenant  becomes  obligatory  on  the  conscience  of 
the  proprietor  of  the  estate.  A  party  deriving  under  the  propri- 
etor^  with  notice  of  the  covenant,  ^ill  then  be  restrained  by  a  Court 
of  Equity  from  doing  an  act  which  would  leave  the  party  under 
whom  he  so  derives  exposed  to  an  action  for  breach  of  the  cove- 
nanty  and  especially  so  where,  from  its  peculiar  nature,  damages 
would  not  afford  an  adequate  remedy.  But,  in  the  present  case, 
it  may  well  be  asked,  where  is  the  covenant  in  the  deed  of  1839» 
by  which  an  equity  is  annexed  to  the  premises  demised  to  the 
respondent  by  the  trustees? 

The  debentures  originally  issued  were  founded  on  a  two-fold 
right.  Tliere  was  the  repayment  of  the  sum  advanced,  with  interest 
in  the  meantime;  there  was  the  right  of  free  admission  to  the 
theatre  by  tickets.  This  latter  claim  is  what  is  now  sought  to  be 
enforced.  It  originated  in  what  was  supposed  to  be  the  law,  as 
decided  in  Taylor  v.  Waters  (e),  a  case  subsequently  questioned  on 
several  occasions,  but  at  last  deliberately  overruled  by  the  well- 
considered  decision  of  the  Court  of  Exchequer  in  England,  in  Wood 
V.  Leadbitter  {d).  The  right  of  admission  is  but  a  license  to  enter 
on  the  premises  of  the  licenser ;  there  is  not  any  grant  of  an  interest 

(a)  Vol.  3,  p.  485.  lOth  ed.  (6)  2  Myl.  &  K.  617. 

(c)  7  Taunt  374. 

(lO  8  M.  &  W.  838;  see  also  Hewitt  v.  Isham  (7  Exch.  77). 


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in  Uie  subject  of  the  license.  It  was  stated  by  Mr.  HugheSy  on 
behalf  of  the  petitioner,  that  his  case  would  be  concluded  at  Law 
by  Wood  v.  Leadbiiter.  If  so,  where  is  his  equity  to  be  found  ? 
If  tliis  be  a  license  to  enter  upon  the  premises,  in  which  it  grants 
nothing  by  way  of  interest,  but  is  simply  a  license  for  pleasure, 
there  is  nothing  to  attach  an  equity  to  tlie  premises  in  tlie  occu- 
pation of  the  respondent.  I  agree  with  Mr.  Hughes^  that  at  Law  a 
license  only  has  been  conferred  or  secured  under  t]ie  covenant  of 
Mr.  Bicknell.  It  purports  to  be  assignable ;  but  it  seems  to  me 
neither  to  be  assignable  nor  transferable.  In  ShephercTs  Touch- 
Mione  (vol.  1,  p.  239)  it  is  said: — *' Licenses  and  authorities  are 
grantable  at  first  for  the  lives  of  the  parties,  or  for  years ;  but  the 
grantees  of  them  cannot  assign  them  over."  In  accordance  with  the 
decision  of  Taylor  v.  Waters^  it  was  supposed  that  the  privilege 
would  be  quite  as  lasting  as  the  debentures,  and  might  be  as  readily 
transferred;  and  the  deed  of  1839  deals  with  this  privilege  as  a 
right  in  perpetuo  belonging  to  the  debenture  holder,  his  representa- 
tives and  assigns.  There  is  a  case  in  the  Year  Book,  1 1  Hen.  7, 
f.  86,  which  is  cited  in  Wickham  v.  Hawker  (a),  in  which  it  is  said, 
of  a  license  to  a  man  and  his  heirs  to  come  and  Iiunt  in  the  park  of  a 
licenser,  that  this  must  be  by  deed,  "  for  a  thing  passes  by  the  license 
which  endures  in  perpetuity."  But,  in  Com.  Dig.^  tit.  Chase  H,  1, 
it  is  shown,  hy  a  reference  to  Manwood^s  Forest  Law^  that  such  a 
license  implies  a  right  to  killing  and  carrying  away  the  game  which 
might  be  hunted,  and  thus,  in  reference  to  the  subject-matter  of  the 
license,  it  is  coupled  with  an  interest.  In  the  present  case,  there 
seems  to  be  nothing  on  which  the  license  can  operate  so  as  to  confer 
an  interest  in  the  subject-matter.  It  is  simply  a  right  of  free  entry 
for  pleasure,  granted  for  pecuniuy  consideration ;  and  so  the  case  is 
governed  by  Wood  v.  LeadbiUer,  and  especially  as  that  case  is 
explained  in  Taplin  v.  Florence  (b).  Tlie  distinction  should  always 
be  noted  between  a  mere  license  and  a  license  either  expressly  or 
impliedly  coupled  with  an  interest  A  further  distinction  is  import- 
ant, between  a  license  to  do  an  act  on  the  land  of  the  licenser,  which 
should  be  granted  by  a  deed,  and  a  license  to  do  an  act  on  the  land 
of  the  party  to  whom  such  license  is  given,  which  act  he  might  have 
(a)  7  M.  &  W.  79.  (6)  10  C,  R  744. 


1859. 
Chancery. 

V— V— ^ 

MALONE 

V. 
HARSIS. 

JudgimmU. 


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1859. 
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Judgment. 


done  without  the  Ucense,  were  it  not  for  some  easement  connected 
with  the  property  of  the  party  who  has  given  the  license.  The 
general  rule  is  that  sucli  a  license,  though  given  hy  word  only, 
when  acted  on  cannot  be  revoked ;  but  in  anywise,  where  the  with- 
drawal or  revocation  of  the  license  would  amount  to  a  fraud  on  a 
licensee,  a  Court  of  Equity  will  interfere.  A  license  may  confer  a 
right  in  the  nature  of  an  easement ;  and,  in  the  learned  treatise  of 
Messrs.  Gale  S^  Whatley^  p.  10,  it  is  stated  that  ''Many  personal 
rights  which,  in  their  mode  of  enjoyment,  bear  a  great  resemblance 
to  easements,  as,  for  instance,  rights  of  way,  may  be  conferred  by 
actual  grant,  independently  of  the  possession  of  any  tenement  by  the 
grantee ;  but  such  rights,  though  valid  between  the  contracting  par- 
ties, do  not  possess  the  incidents  of  an  easement.  In  case  of  disturb- 
ance of  a  personal  right  thus  given,'  the  remedy  would  appear  to  be 
upon  the  contract  only."  The  case  of  Caicrqft  v.  West  (a),  which 
relates  to  this  theatre  in  some  degree,  sustains  the  proposition  that, 
as  a  licensee,  the  petitioner  has  no  locus  standi  in  a  Court  of  Equity. 

It  was  admitted,  by  the  Counsel  for  the  petitioner,  that  no  prece- 
dent could  be  found  for  the  relief  sought  under  such  circumstances. 
I  would  not  be  deterred  by  the  absence  of  precedent,  if  I  could  dis- 
cover a  principle  clearly  established,  and  capable  of  being  safely 
applied  to  the  admitted  facts  before  me.  But  I  think  it  would  be 
without  precedent,  and  against  principle,  to  give  the  relief  required 
by  the  petitioner,  who  must  resort  to  the  covenant^in  the  deed  of 
1839  for  whatever  relief  he  can  obtain ;  in  this  Court,  I  can  give 
him  none. 

It  is  not  necessary  to  advert  to  other  views  of  the  case,  nor  to  say 
whether  the  respondent  might  not  resist  this  claim,  as  in  substance 
a  suit  for  specific  performance ;  or  on  the  ground  of  the  great  incon- 
venience and  hardship  to  which  he  might  be  exposed,  if  such  a 
claim  as  that  which  has  been  put  forward  by  the  petitioner  should 
be  allowed. 

On  the  broad  principles  which  I  have  stated  and  explained;  I 
think  I  am  bound  to  dismiss  this  petition ;  and  of  course  I  dismiss  it 
with  codts. 

(o)  2  J.  &  L.  123. 

Beg.  Lib.  26,/.  51. 


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1860. 
Chancery. 


DALY  V.  THE  ATTORNEY-GENERAL  and  others. 

June  15. 

The  Rev.  Skeffington  Preston,  by  his  will,  bearing  date  the  16th  A   testator. 

being  j^ossess* 
day  of  June  1843,  after  reciting  that  he  was  possessed  of  certain  ed   of   £4000 

stock,    be- 
bonds  for  the  respective  sums  of  £1428  and  £1500,  and  of  a  sum  of  qaeathed 

£4000  old  £3^  per  cent.  Government  stock,  gave  and  bequeathed  an  indiyidnaL 

the  said  securities,  and  all  money  due  thereon,  to  James  Daly,  after-  remainder   he 

wards  Lord  Dunsandle,  and  the  Hon.  Bowes  Daly,  on  trust,  to  pay  Jj^^^^^^f  ^^ 

the  yearly  income  thereof  to  the  testator's   two  sisters,  share  and  ^«>te8tant 

share  alike,  during  their  lives,  and  to  the  survivor  of  them  djuring  I*eter*s  parish, 

'  ^  '  *^   and   another 

her  life;  and,  after  the  death  of  the  survivor,  he  declared  that  the  ^1000  for  the 

use   of  the 
pecuniary  legacies  in  his  will  mentioned   should  take  effect  (save  school  attach- 

.      edtotheEpis- 
some  small  pecuniary  legacies,  which  were  to  be  paid  within  six  copal  chapel 

in    B.-street. 
months  after  his  decease).      He  then  bequeathed  to  Bowes  Daly  The  chapel  in 

£2000  of  the  said  stock  ;  and  he  left  and  bequeathed,  for  the  use  of,Q^  school  at. 

the  Protestant  school  belonging  to  the  parish  of  St.  Peter's,  in  the  B.^^et^ww 

city  of  Dublin,  the  sum  of  £1000  of  said  stock;  and  he  left  and  p^^.J^^^J^^ 

bequeathed,  "  for  the  use  of  the  Protestant  school  attached  to  the  ^^*^'  ^^  ^ 

gard    to    the 

Episcopal  chapel  in  Upper  Baggot-street,  Dublin,  the  sum  of  £1000  second  £1000, 

the  will  show- 
of  said  stock."     And  all  the  remainder  of  his  property  he  gave  and  ed   a   general 

'^    ^     ''        ^  charitable   in- 

bequeathed  to  his  sisters,  and  the  survivor  of  them,  for  life ;  and,  tention,  which 

might  be  exe- 
after  the  decease  of  the  survivor,  he  gave  it  to  Bowes  Daly ;  and  he  cated  cy  pres, 

appointed  the  said  Bowes  Daly  and  James  Daly  executors  of  his  Protestant 
will.     On  the  23rd  of  January  1844,  the  testator  died;  and  the  said  Peter'spiuTsh; 
will  was  afterwards  duly  proved  by  the  executors.    It  appeared  that  fJJ^^'  ^  JJ^ 
there  was,  at  the  testator's  death,  and  had  been  for  a  long  period  ^^^^  ^^  set- 
previously,  and  continued  to  be  at  the  time  of  the  filing  of  this  accordingly. 

The   costs, 

petition,  a  Protestant  school,  for  the  education  of  the  parishioners  down   to  and 

of  St.  Peter's  parish,  in  connection  with  the  parish  church  of  St.  hearing,^  or-^ 
Peter's.  There  was  also  an  asylum  or  institution  in  Upper  Baggot-  p^douU)f  the 
street,  for   the   reception  of  penitent  females,   and,   in  connection  ^^g*^°®  j.  J^^ 

reference  to  be 
borne  by  the  fund. 
VOL.  11.  6 


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1860. 
Chancery* 

N- , » 

DALY 

v. 

ATTORNBT- 
OENEBAL. 

Statement. 


therewith,  an  Episcopal  chapel ;  and  it  appeared  that  the  testator 
was  in  the  habit  of  attending  Divine  Worship  at  that  chapeL  There 
was  another  Episcopal  chapel  in  Baggot-street.  This  chapel,  and 
the  institntion  with  which  it  was  connected,  were  vested  in  certain 
trustees,  under  the  provisions  of  a  certain  deed  of  trust,  bearing 
date  the  18th  day  of  February  1835.  The  institntion  was  supported 
partly  by  subscriptions,  and  partly  by  the  pew-rents  of  the  ohoreh, 
but  principally  by  the  industry  of  the  inmates  of  the  institution*  Ko 
school,  in  the  proper  sense  of  the  term,  was  attached  to  or  con- 
nected with  the  chapel  or  institution. 

The  present  petition  was  filed  by  Mr.  Bowes  Daly  (Lord  Don- 
sandle  having  died),  sobtnitting  that  the  bequest  for  the  use  of 
the  Baggot-street  school  failed,  for  i^ant  of  an  object ;  and  that  the 
sum  of  £1000  intended  for  it  was  not  devoted  to  general  charitable 
purposes,  and  that,  therefore,  it  fell  into  the  residue  bequeathed 
to  Bowes  Daly ;  and  praying  the  decision  of  the  Court,  and  that 
the  trusts  of  the  will,  so  far  as  concerned  the  two  sums  of  £1000, 
might  be  performed.  The  respondents  named  were  the  trustees  of 
the  Baggot-street  institution,  ^e  incumbent  of  the  parish  of  St. 
Peter's,  and  the  Attomey-Greneral. 


Mr.  Brewster  and  Mr.  Oeorge  May^  fat  the  residuary  legatees. 
Argument.  On  the  statement  of  the  trustees  of  the  institntion  in  Upper 

Baggot-street,  there  does  not  exist  any  such  charity  as  a  Protestant 
school  attached  to  their  chapel.  Considering  what  a  school  is,  it 
would  be  too  great  a  stretch  of  language  to  hold  that  this  establish- 
ment for  the  benefit  of  a  certain  class  of  females  could  be  deemed  a 
schooL  It  cannot  be  so  described,  if  there  be  not  an  organised 
system  of  teaching  or  telLchers  attached.  It  is  not  possible  to  say, 
therefore,  that  this  establishment  is  within  the  scope  of  the  bequest 
or  the  terms  of  the  will.  Then  the  question  is,  whether  the  bequest 
&ils  altogether,  or  can  be  worked  out  by  this  Court,  cy  pres^  on  the 
doctrine  that  a  charitable  bequest  will  not  be  allowed  to  fail  fbr  want 
of  an  object ;  but  the  rule  is  established,  that  that  can  only  be  done 
where  the  testatof  appears  to  have  had  a  general  intention  to  make 
a  charitable  bequest,  and  that,  when  he  seems  only  to  have  had  a 


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pMticalAr  chgritj  in  view,  if  the  beqnest  is  for  any  reason  invalid,  t|ie  1 860. 

legacy  lapses.    The  mode  of  the  gift  here  makes  no  difference ;  the  ' — ^!^]Lf 

snras  hoiag  all  speoifieallf  appropriated,  it  is  as  if  he  had  mad^  ^ 

different  bequests  of  £1000  eaek  It  makes  no  difference,  his  haying  ATTOKHsr- 
pot  them  together  in  the  first  instance :  Attomey^Genend  v. 
Hmrsi  (a) ;  Attomey^General  v.  GoUing  {b) ;  Carberry  y.  Cox  (e)  i 
Au^tmey-Gemral  y.  Ironmongers  Comf^my  (<0*  Of  course,  as  the 
rest  of  the  estate  is  in  no  way  inyolyed  in  this  qoestion,  the  costs  of 
this  matter,  relating  exclosiv^y  to  this  fnttd,  most  he  borne  by  it. 


a|£N£RAL. 

ArgvmetU. 


Mr.  R.  B.  Warren  and  Mr.  Franks,  for  the  tmstees  of  the  Pro- 
testant Episcopal  chapel  in  Upper  Baggot-street. 

This  institotion  may  fiuriy  be  deemed  a  school.  It  is  a  house 
for  discipline  and  instraetaofi  %  at  any  rate  there  \b  enough  to  sh<>w 
that  this  bequest  ou^  to  be  carried  out  as  a  charity ;  and,  if 
so,  the  Coort  will  give  it  to  this  institution :  Loioombo  y.  Win- 
iermgham  (s) ;  In  re  Clergy  8oeiety(fJi  Hester  y.  Tregoe(g). 
As  for  the  costs,  the  invariable  rule  is,  that  the  residuary  legatee 
bears  all  the  ^eoets  of  determining  the  construction  of  a  will. 

lir.  Francis  Brady,  for  the  rector  of  the  parish  of  St.  Peter's. 

Mr.  C<issidy,  for  the  Attomey-Creneral,  submitted  that  there 
was  such  an  indication  of  a  general  charitable  intention,  that  the 
Court  would  carry  it  out  ey  pres. 


The  Lord  Chancellor. 

I  am  not  satisfied  in  this  case  that,  on  the  materials  before  me, 
I  could  say  that  this  institution  comes  witiiin  the  description  of  a 
school  annexed  to  the  Episcopal  chapel  in  Upper  Baggot-street, 
according  to  the  provisions  of  the  trust  deed,  llie  chapel  seems 
rather  to  be  annexed  to  the  school,  or  the  establishment  contended 
to  be  a  school.     I  think  it  is  better  that  some  points  of  evidence 


(a)  2  Cox,  3fi5. 

(c)  3  Ir.  Chan.  Bep.  213. 

(e)  13  Bear.  87. 

(^)6Biiflt.  113. 


(6)  2  Bro.  42a 
((0  2114K.576. 
09  2KayAJ.ei5. 


Judgment, 


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44  CHANCERY  REPORTS. 

1860.        should  be  supplied,  which  might  aid  ia  arriving  at  a  right  con- 
Chancery, 

elusion ;  and  I  do  not  think  it  necessary  just  now  to  discuss  the 

questions   raised,  respecting  the  construction  of  the  bequest,  as  I 

ATTORNEY-    think  that  at  present  I  cannot  do  anything  more  than  refer  it  to  the 

GENERAL 

Master   to  inquire  whether  there  is  a  Protestant   school  attached 

Judgment,  ^q  ^^jg  chapel,  within  the  meaning  of  the  will.  Then  there  arises 
the  question  as  to  what  direction  is  to  be  given,  in  case  the  Master 
shall  find  that  there  is  not  such  a  school  ?  It  has  been  contended, 
on  the  part  of  the  petitioner,  that  this  sum  of  £1000  is  sq  appropriated 
to  this  particular  purpose,  that,  if  it  appear  that  there  is  no  such 
school,  it  cannot  be  applied  for  any  other  charity,  and  must  fall 
into  the  residue  for  the  benefit  of  the  petitioner,  who  is  residuary 
legatee.  On  the  other  side  it  was  alleged  that,  even  if  this  insti- 
tution-were not  within  the  precise  language  of  the  will,  yet,  on 
the  whole  language  of  the  testator,  a  general  charitable  intention 
appears  to  have  been  shown;  so  that  I  can  apply  the  doctrine 
of  cy  presy  and  appropriate  the  fund  to  some  other  charitable  * 
purpose. 

In  this  case  there  are  some  peculiarities.  The  petitioner  here 
fills  several  distinct  characters.  He  is  petitioner ;  he  is  executor 
of  this  charitable  fund,  and  he  is  residuary  legatee ;  and  he  has, 
therefore,  a  personal  interest  in  the  decision  ;  he  has  an  interest  apart 
from  that  which,  as  executor,  he  would  have,  to  come  here  to  be 
absolved  from  all  liability  in  respect  of  the  future  application  of 
the  fund ;  and,  therefore,  this  cause  petition  was  rightly  instituted, 
as  the  will  does  raise  a  question  of  some  difficulty. 

I  am,  however,  quite  satisfied  that  there  is  a  general  purpose  in 
favour  of  charity  indicated  in  this  will.  If  I  am  to  act  on  the 
authority  of  The  Attorney- General  v.  The  Ironmongers  Com- 
pant/  (a),  I  must  certainly  hold  the  general  charitable  intention 
to  have  been  manifested.  The  principle  is  there  laid  down  very 
clearly,  in  such  language  that  it  is  difficult  to  conceive  a  case  coming 
more  completely  within  it  than  the  present ;  Lord  Brougham  say- 
ing:— "So,  in  the  case  of  a  charity,  when  I  bequeath  £100  to  one 
object,  and  £50  each  to  two  other  objects  of  bounty,  my  trustees 

(a)  2  M.  &  K.  576. 


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CHANCERY  REPORTS.  45 

violate  their  duty  if  they  give  less  than  £100  to  the  one,  and  more         I860. 

Chancery. 
than  £50  to  each  of  the  other  two ;  and  that,  whether  I  use  words  of     *— — v — -* 

exclusion,  such  as  **  no  otherwise,"  "no  other  charities,"  &c.,  or  omit  ^ 

to  use  them.     But,  when  the  one  ohject  fails,  the  doctrine  of  cy  pres    attoeney- 

QENERAL. 

hecomes  applicable,  although  it  has  no  place  in  legacies  to  indivi-         

duals ;  and  the  intention  to  which  the  Court  is  to  approximate  will      Judgment. 

be  gathered  from  the  other  gifls,  and  from  the  gift  itself."     The 

words  here  are  very  general.     I  find  a  legacy  of  £2000  given,  as  to 

£1000  in  trust  for  one  charity,  as  to  the  other  £1000  for  the  other ; 

and,  taking  the  intention  from  the  whole  instrument,  I  cannot  but 

feel  convinced  that  that  whole  £2000  was  intended  to  be  applied  for 

a  charitable  purpose  of  this  kind. 

Then  it  is  said,  on  behalf  of  the  petitioner,  that  the  doctrine  of 
that  case  is  controlled  by  another  principle,  viz.,  that  if  there  be  but 
a  single  object  of  charity  named,  and  that  confined  to  a  single  local- 
ity, definitely  specified  and  pointed  out,  then  there  is  no  room  for  the 
application  of  the  doctrine  of  cy  pres;  but,  if  the  prescribed  object 
be  wanting,  the  legacy  fails,  as  in  the  case  of  a  legacy  to  an  indivi- 
dual. A  dictum  of  the  Master  of  the  Rolls,  in  the  case  of  The 
Attorney- GenercU  v.  Hurst  (a),  was  referred  to.  In  that  case,  the 
testator  had  bequeathed  the  residue  of  his  personal  estate,  upon 
trust  to  pay  £12  per  annum  to  the  schoolmaster  at  Ravenstone, 
and  to  apply  the  surplus,  if  any,  in  clothing  and  apprenticing  two 
children  of  the  parish  of  Ravenstone,  and  one  of  the  parish  of  Little 
Woolstan.  The  fund  was  too  large  for  these  objects,  and  the  surplus 
was  held  applicable  to  general  charitable  purposes ;  Sir  Lloyd  Ken- 
yon  saying : — '*  If  there  is  one  particular  object  to  which  a  testator's 
mind  applies,  as  the  building  of  a  church  at  Wheatley,  and  that  pur- 
pose cannot  be  answered,  the  next-of-kin  must  take,  there  being  in 
that  case  no  general  charitable  intention  ;  but  when,  as  in  the  Case 
of  Thetford  School^  and  other  cases,  the  testator  intends  to  give  all 
generally  to  charitable  purposes,  the  increase  will  go  cy  pres,**  Now 
that  case  of  a  church  at  Wheatley,  which  was  relied  on,  is  a  very  par- 
ticular case,  suggested  by  the  Master  of  the  Rolls — that  of  building 
a  church  in  a  certain  specified  place ;  the  intention  there  does  not 

(6)  2  Cox,  364. 


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CHANCERY  REPORTS, 


1860. 

Chmteery, 

^  _  _v 

DALT 

ATTQBNET- 
OSNEBAJU 

JudgmmL 


go  beyond  the  benefit  of  this  preoiBO  localHji  and  there  is  nothing  to 
show  that  building  a  church  iq  another  pUoe  «oold  at  all  have  eoma 
within  the  wishes  of  the  testator.  Then  it  is  said  thai,  in  Car* 
berry  v.  Cox  (a),  dieoe  was  a  decision  which  went  x^n  the  prin- 
ciple of  that  didums  but,  in  timth,  it  wfks  a  very  difbreni  case 
from  the  present,  s^  far  as  regards  the  particular  bequesjt  which 
was  then  in  question.  It  was  the  gift  of  a  perpetual  annuity  to 
the  nooks  of  Moast  Melleraj,  near  Cappoquin,  to  be  appropriated 
for  the  improTevtent  of  the  chapel  of  Melleraj,  That  was  as  like 
the  case  of  &  bequest  for  building  a  church  as  could  well  be  ima- 
gined ;  and,  accordioglj,  I^ord  Chancellor  Blackburne  says  there : — 
**  The  finding  as  to  this  is,  that  the  defendant,  the  Rev.  Matthew 
Joseph  Ryan,  who  is  the  successor  of  the  Very  Rev.  Michael 
Vincent  Rjan,  deceased,  is  the  abbot  and  principal  of  the  monks 
of  Mount  Meller^.  From  this  I  infer  that,  since  the  dsiatb  of 
the  testator,  Michael  YinceBt,  who  was  then  the  abbot  or  prin- 
cipal, has  died  ;  so  that  I  canopt  reeogniae  any  right  in  his 
successor;  neither  can  I  discover  any  general  charitable  purpose 
thait  can  authorise  the  Court  in  devising  a  scheme.**  Tha^  beqqeat, 
however,  was  of  an  aniiuity.-*4i  specific  hequ^t,  staadiAg  bf  i^selC 
and  totally  without  anything  to  indipalc  a  general  purpose  of 
charity;  and,  therefore,  it  was  decided  to  belong  to  th(S  reaiduary 
legfUee.  In  the  very  aaiBie  case,  however,  the  cy  pres  doctrine 
was  applied  to  Another  bequest  mpre  like  this,  by  which  the  suqi 
of  £20  yearly  was  bequeathed  "to  the  monks  of  Shandpn,  near 
Dungannoo,  to  provide  clothing  for  the  poor  children  attei^iiog 
their  school.'*  Th^  school  was  iNQcidentally  discoBjtiaued ;  hot  the 
Lord  Chancellor  held  that,  eveo  if  the  school  was  altogether  to 
cease,  there  was  such  a  g(B4ieral  charitable  intention  indicated 
as  to  be  capable  of  being  carried  out  by  a  scbevAe  befiffe  the 
Master.  Some  other  decisions  may  be  nention^  showing  jthat 
the  doctrine  may  be  applicable  even  in  the  mwsh  weaker  $aae  of 
an  isolated  bequest,  if  the  bequest  cui  be  seen  to  imj^y  a  general 
charitable  intention.  Master  v.  Ti^ke  w»b  a  case  where  the  tes- 
tator gave  £500  to  a  voluntary  society  called  the  ^*  Plyinavth 


(a)  3  Ir.  Caian.  B^,  281. 


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CHANCERY  aEK)BTS.  47 

and  DeTonehire  Asjrlam  for  (br  the  reception  o£  female  penitents."  I860. 
This  society  was  in  existence  at  the  time  when  the  win  was  made, 
and  at  the  death  of  the  testator,  but  was  soon  afterwards  dissolved  ; 
and  the  Master  of  the  Bolls  held  that  there  was  a  sufficient  indica- 
tion of  a  general  charitable  purpose,  and  directed  a  scheme  to  be 
prepared  by  the  Master,  in  order  to  the  execution  of  it  cypres,        Judgm§Mi. 

One  Case  was  mentioned,  in  which  a  question  not  unlike  this 
occurred  ;   I  mean  In  the  maiier  of  the  Cl&tgy  Society  (a)  ;  and 
it  is  more  analogous  perhaps  than  aify  other  to  the  present,  in  this 
respect^  that  the  will  bequeathed  several  sums  to  different  institu- 
tions of  a  similar  character ;   and  then,  though  one  could  not  be 
found,  it  was  held  that  the  bequest  to  it  could  be  applied  to  charity 
cypres.    The  will  was : — *^  I  bequeath  to  the  following  societies  or 
institiitioiiB  established  or  carried  on  in  London  the  several  legacies 
or  snms  next  hereinafter  mentioned ;  that  is  to  say,  to  the  Church- 
building  Society  the  sum  of  £2000  £3  per  cent,  consols;  to  the 
Clergy  Society  the  like  sum  of  £2000,  like  annuities ; "  and  so  on, 
giving  similar  legacies  to  other  societies.    The  executrix  could  not 
discover  what  society  was  meant  by  "the  Clergy  Society."     Several 
institutions  claimed  this  legacy,  and  the  executrix  paid  it  into  Court 
under  the  Trustee  Relief  Act.    It  was  strongly  argued  that  the  gift 
must  be  held  void  f<^  uncertainty,  because  no  object  could  be  found 
to  answer  the  description ;  but  a  scheme  was  directed,  the  Vice- 
Chanedlor  saying : — *^  The  right  course  seems  to  me  to  be  to  direct 
a  scheme  for  the  application  of  this  ftind  in  London ;  the  testatrix 
has  specified  that  locality,  though  she  has  not  sufficiently  defined 
the  object  of  the  gift."    That  decision  is  a  very  useful  guide  in  this 
case ;  for  we  have  the  separation  of  these  two  sums  fii^m  the  rest  of 
the  property,  which  are  stated  to  be  for  the  benefit  of  schools  in  St. 
Peter's  pariah.    One  of  them  is  tiientioned,  in  a  general  way,  as  the 
sehool  of  the  parish ;  the  other,  which  he  shows  a  wish  to  benefit, 
is  also  situate  in  the  parish  of  St.  Peter ;  and  therefore  there  is,  so 
far,  an  indication  of  intention  to  benefit  the  Protestant  schools  in 
the  parish  of  St.  Peter. 

In  Barrett  v.  Hayter  (6),  the  testator  bequeathed  as  follows : — 

(a)  1  K.  a  J.  615.  (6)  2  Bear.  81. 


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48 


CHANCERY  REPORTS. 


1860. 
Chancery. 

K , -/ 

DALY 

V. 

ATTORNEY- 

GENEBAL. 


Judgment, 


"  I  leave,  after  the  death  of  Lucy  Hawes,  as  many  thousand  £3^  per 
cent,  to  the  following  charities;  viz.,^  £1000  £3^  per  cent,  to  the 
Jews'  poor,  Mile-end, "  and  so  on  to  a  number  of  other  charities. 
There  was  a  reference  to  inquire  what  charity  was  meant  by  the 
"  Jews'  poor,  Mile-end,"  and  a  controversy  arose  as  to  which  of  two 
institutions  was  entitled  to  this  ;  and  the  Master  found  that  there  was 
no  sufficient  evidence  as  to  what  charity  was  meant  by  the  testator 
by  the  description  of  the  **  Jews'  poor.  Mile-end."  Both  charities 
filed  exceptions  to  the  report.  The  Master  of  the  Rolls  overruled 
both  sets  of  exceptions,  but  applied  the  fund,  by  the  doctrine  of 
cy  pres,  to  the  two  charities  equally.  Thus,  in  fact,  the  gift  there 
was  to  a  particular  institution,  of  a  portion  of  a  larger  si^m,  the  whole 
of  which  seemed  to  be  dedicated  to  charitable  purposes — a  case  pre- 
cisely analogous  in  that  respect  to  the  present ;  and  the  Master  of  the 
Rolls,  not  being  able  to  find  the  particular  institution  intended  by  the 
testator,  proceeded  to  have  a  scheme  settled,  by  which  his  wishes 
might  be  carried  out  o^  pres, 

I  need  not,  however,  go  more  at  length  into  the  cases,  the  whole  of 
which  are  collected  in  a  note  to  the  case  of  Loseomhe  v.  Wintering- 
ham  (a)  ;  but  on  the  grounds  which  I  have  mentioned,  looking  to  all 
the  cases  and  to  the  language  of  Lord  Brougham,  I  do  not  think 
that  I  can  hold  that  there  is  any  expression  in  the  will  to  indicate 
an  intention  that  the  fund  should  not  be  applied  for  the  benefit  of  any- 
thing save  schools  attached  to  this  Episcopal  chapel,  or  to  show  an 
appropriation  of  this  sum  to  one  purpose  only.  The  intention  ex- 
pressed is  in  favour  of  schools  in  St.*  Peter's  parish,  one  in  one  place 
and  another  in  another.  There  appears  a  general  intention  to  sup- 
port such  schools,  and  I  think  it  a  fit  case  to  make  a  reference  as  to 
the  proper  application  of  the  fund. 

Then  the  question  arises,  who  is  to  pay  the  costs  of  this  suit  ?  Now, 
it  is  plain  that  if  this  had  been  a  cause  petition  to  have  a  general 
administration,  and  this  question  had  arisen  in  it,  all  the  costs  must 
have  come  out  of  this  general  personal  estate.  The  legatee  is  en- 
titled to  be  paid  his  legacy,  discharged  of  all  such  deductions ;  he  is 
to  have  it  clear ;  and  whether  the  administration  takes  place  with 

(a)  13  Beay.  84. 


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CHANCBEY  REPORTS.  49 

or  without  the  aid  of  a  Court  of  Equity,  he  is  entitled  to  have  the        I860* 
legacy  exonerated.    If,  in  order  to  have  the  rights  clearly  ascer-     >^^ — ,, — ^ 
tainedy  any  expenditure  is  necessary,  whatever  costs  may  be  so  in-  ^^ 

curred  must  fall  on  the  personal  estate.     The  cases  are  very  fall  a'RTornet- 

upou  the  point     I  had  them  before  me  in  the  case  of  Williams  v.         

Armstrong  (a),  in  which  a  question  of  construction  was  raised  as  to     Judgment, 

a  particular  fund ;  and  I  then  held  that  ^*  the  costs  of  all  necessary 

parties  to  an  administration  suit,  occasioned  by  a  question  on  a  will, 

come  out  of  the  general  assets,  and  cannot  be  thrown  on  a  particular 

fund,  though  the  only  difficulty  arises  between,  the  parties  interested 

in  that  fund,  knd  there  is  no  question  as  to  the  rest  of  the  assets." 

In  that  case  the  question  was  as  to  the  construction  of  the  word 

"  balance."    The  testatrix  had  bequeathed  certain  amounts  out  of  a 

sum  of  stock,  which  was  really  only  £1750,  but  which  she  stated 

in  the  will  to  be  £2255,  to  certain  parties  respectively,  and  gave 

the  balance  to  a  particular    individual ;    and  the    question   was 

whether,  according  to  Pags  ▼•  L€0pingwell  (6),'  the  balance  was 

to  be  taken  as  an  ascertained  aliquot  share  of  the  actual  fund,  or 

whether  the  legatee  of  the  balance  was  not  to  get  anything  until  the 

others  were  fully  paid.    I  held  that  the  legatee  of  the  balance  could 

get  nothing,  the  fund  being  deficient ;  but  that  although  the  question 

only  concerned  that  particular  fund,  still,  on  the  result  of  all  the 

authorities  up  to  that  time,  the  costs  of  all  parties  were  held  to 

come  out  of  the  general  residuary  estate    There  is  another  case 

much  to  the  same  effect,  Wilson  v.  Sqwire  (e),  which  was  a  suit  for 

administering  a  testator's  assets,  and  in  which  a  legacy  was  claimed 

by  two  legatees  adversely  to  each  other ;  and  it  was  held  that,  as 

the  question  arose  on  the  testator's  will,  the  costs  must  be  borne  by 

his  estate,  and  not  by  the  legacy;  the  Vioe-Chancellor saying : — 

**  If  a  fund  be  separated  from  a  bulk  of  the  testator's  estate,  and 

then  a  question  arises  about  it,  the  fund  pays  the  costs.     But  if  the 

question  is,  who  is  entitled  to  the  fund  in  the  first  instance,  that 

question  is  raised  by  the  testator  himself,  and  his  estate  must  bear 

the  costs ;  for  a  testator's  estate  bears  the  cqsts  of  all  the  questions 

(a)  12  Ir.  £q.  Bep.  356.  (6)  18  Yes.  463. 

(c)  13  Sim.  212. 
VOL.  11.  7 


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CHANCERY  REPORTS. 


1860.  that  arise  on  his  will  respecting  it.     In  this  xjase,  therefore,  the  costs 
Chaticery. 

'' . -'  of  all  parties  must  be  paid  out  of  the  estate." 

DALY 

^     ^^  Now  here  we  have  a  fund  which  has  never  been  separated  from 

ATTORNET-  the  estate  of  the  testator.     The  petitioner,  who  comes  to  seek  the 

GENERAL.  ,.  .  «     ,       ^  .       , 

directions  of  the  Court,  is  the  executor  and  residuary  legatee  under 


Judgment. 


the  will,  and  is  the  trustee  of  this  particular  fund.  There  is  no 
other  trustee  of  it ;  it  has  never  been  appropriated  to  a  separate  trust. 
There  has  been  no  administration  of  the  estate  ;  the  consequence  is, 
that  if  there  were  a  suit  by  the  Attorney- General,  or  by  the  charity, 
to  have  an  administration,  or  by  the  executor,  to  have  his  rights 
ascertained,  the  costs  must  come  out  of  the  fund.  In  this  case  the 
distinction  is  taken  that  it  is  not  for  general  administration,  but  to 
have  the  rights  in  this  fund  ascertained ;  in  other  words,  it  is  filed 
partly  for  the  protection  of  the  executor,  partly  fl>r  the  purposes  of 
the  owner  of  the  fund,  whoever  he  may  be.  Under  these  circum- 
stances, I  think  that  up  to  this  point  the  costs  should  be  paid  out  of 
the  residuary  estate,  and  that  the  remaining  costs  should  be  borne 
by  the  fund  itself,  as  if  brought  in  under  the  Trustee  Relief  Act. 


Mr.  Brewster  and  Mr.  May,  for  the  petitioner. 
Argument.  If  this  fund  had  been  brought  in  under  the  Trustee  Act,  that 

expense  would  have  been  imposed  on  the  fund,  in  addition  to  the 
expense  of  a  petition  against  the  Attorney- General,  which  would,  no 
doubt,  have  been  directed  by  the  Court.  It  was  for  the  benefit  of 
the  fund  to  take  the  course  here  adopted ;  and  the  petitioner,  who  is 
himself  the  residuary  legatee,  ought  not  to  be  burdened  with  this 
expense.  The* fund  is  perfectly  appropriated  on  special  trusts,  and 
separated  from  the  rest  of  the  property.  It  is  not  an  administration 
suit,  it  is  merely  in  the  nature  of,  and  analogous  to,  proceedings 
under  the  Trustee  Relief  Act. 

The  Lord  Chancellor. 

Judgment.  I  do  not  think  that  there  is  anything  here  to  take  this  case  out 

of  the  general  rule ;  ngr  ought  the  executor  to  be  allowed  to  evade 

the  settled  rule  on  the  subject,  merely  by  an  alteration  in  the  form 

of  proceeding.     The  executor  comes  for  the  advice  of  the  Court, 


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CHANCERY  REPORTS.     '  51 

and  the  general  personal  estate  must  paj  for  that.    It  is  settled  by        1860. 

the  cases  to  which  I  have  referred,  that  whenever  a  suit  is  instituted      < ^ — 1; 

for  the  administration  of  personal  estate,  though  there  be  only  a 

question  as  to  the  bequest  of  a  particular  fund,  it  is  a  matter  of  strict  attorn  et- 

right  that  the  meaning  of  the  will  is  to  be  declared  at  the  expense         _] 

of  the  general  estate.  It  is  now,  however,  contended  that  an  Judgment. 
executor,  keeping  portions  of  the  assets  in  his  hands,  and  after  the 
general  estate  is  wound  up,  may  say,  "  Here  is  a  particular  sum, 
respecting  which  I  will  ask  the  opinion  of  the  Court,"  and  may 
throw  on  that  fund  all  the  costs  of  that  inquiry.  I  allow  that,  if 
it  can  be  once  properly  vested  in  separate  trustee?,  and'  thus  com- 
pletely severed  from  the  residue,  it  may,  if  a  question  arises,  under 
some  circumstances,  be  made  to  bear  the  costs ;  but  I  do  not  think 
that  it  can  in  this  way,  which  would  be  just  as  applicable  if  there 
were  twenty  different  funds  to  be  disposed  of,  as  in  the  present  case. 
I  cannot  allow  the  residuary  estate  to  be  withdrawn  from  its  proper 
liability  by  this  method  of  proceeding.  If  the  executor  has  any 
assets,  he  must  pay  these  costs  out  of  them.  All  that  I  can  do  is  to 
have  the  money,  if  now  brought  into  Court,  made  to  bear  the  costs 
of  any  further  litigation  respecting  it. 

Reg.  Lib.  26,/.  185. 


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52  CHANCERY  REPORTS. 


1859. 
Ch.  Appeal, 


Court  of  9pptA  in   tfjbAncetp* 
KERNAGHAN  v.  M'NALLY. 


Dec.  9. 


A  widow  filed  This  case  came  before  the  Court  on  an  appeal  from  an  order  of  the 
against  alienees  LoBD  CHANCELLOR,  dated  the  Uth  day  of  July  1859,  by  which 
band!^  In°*or-  ^^  ^^  dismissed  the  petition.  The  following  were  the  material 
out  her  "tide  ^^^^  ^^  *^®  ^*^ :— Alexander  Nixon  made  his  will,  dated  the  5th 

to  dower,  the  ^^y  of  March  1776,  and  thereby  devised  certain  lands  therein  men- 
petitioner  was       ^  '  ' 

obliged  to  give  tioned,  to  his  executors,  therein  named,  in  trust  for  his  eldest  son, 

m  evidence  a 

deed,  by  which  George  Nixon,  and  bequeathed  all  the  residue  of  his  real  estate  to 

the  estate  had 

been  conveyed  his  executors,  in  trust  for  his  younger  children,  as  tenants  in  com- 

to  the  person 

from  whom  her  mon,  subject  to  the  charges  in  the  said  will  mentioned.     In  the 

ed.   This  deed  month  of  November  1776,  after  the  execution  of  said  wiU,  the  said 
dtal^tlmt^the  Alexander  Nixon  purchased  the  lands  of  Rea's-tenement  or  Rea's- 
w^o^tetand-  P*"^^'  which  were  conveyed  to  him  by  deed  of  the  16th  of  November 
ing  in  certain    1775 
trustees.    The        *    ' 

petitioner  also       Mr.  Alexander  Nixon  died  in  1791,  leaving  his  said  eldest  son 
gave    in    evi- 
dence   certain  and  six  younger  sons  surviving  him  ;  and  these  younger  sons  imme- 
orders  of  the 

CoortofChan-  diately  went  into  possession  of  Rea's-park,  and  so  continued  in 
eery,  to  show  ,  .,     ,  ,  ,       ,  i.        ,    , 

that  sach  red-  possession  until  the  subsequent  sale  thereof,  and  dealt  with  it  as 
tal   was    mis-     ,    .  a         1    •   •         •  •     >n  « 

taken. —ZfeW,  ^"^^'^  ^^^  property.     An  administration  suit  (known  as  Scott  v, 

entitl^^to^^  iVtxon)  having  been  instituted  by  a  judgment  creditor  of  Alexander 
ascertain  '^he  ^'^^°»  *  ^i^c^ee  was  made  in  it  for  a  sale ;  and  Rea's-park  was,  on 

lands  of  which  the  24th  of  April  1839,  sold  to  George  Rankin.  A  reference 
she  was  dow-  *  ° 

able.  respecting  the  title  of  Rea's-park  having  been  then  made,  and  the 

Statement,  Master  having  reported  good  title,  the  purchaser  took  exceptions  to 
this  report,  which  were  allowed  by  the  Master  of  the  Rolls,  by  an 
order  dated  the  14th  of  January  1843.  From  this  order  the  plain- 
tiffs appealed ;  and,  on  the  8th  of  February  1843,  Lord  St  Leo- 
nards (the  then  Lord  Chancellor  of  Ireland)  reversed  the  order  of 
the  Master  of  the  Rolls,  on  the  ground  that  the  younger  children 


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CHANCERY  REPORTS.  53 

of  the  said  Alexander  Nixon  had  acquired  an  indefeasible  title,  bj         1 859* 
an  adverse  possession  of  more  than  twenty  years:  vide  this  case,     « 1^,.  .../* 

«  mr.  X    V  *  ■..        1         ,  .     ,  KERNAOHAN 

reported  as  ScoU  v.  Ntxon  (a).      Accordingly,  by  an  indenture,  p, 

bearing  date  the  3rd  day  of  April  1844,  and  professing  to  be  made         

by  Master  Litton,  of  the  first  part,  James  Scott,  Esq.,  of  the  second  -Ste^eiiwii^ 
part,  Adam  Nixon  and  Alexander  }<^ixon,  of  the  third  part,  the  said 
Alexander  Nixon  and  Maryanne  his  wife,  of  the  fourth  part,  Han- 
nah Scott,  Elizabeth  Scott  and  Mary  Scott,  of  the  fifth  part,  Ralph 
Scott,  of  the  sixth  part,  Adam  Nixon,  of  the  seventh  part,  Montgo- 
mery Downes  Nixon,  Frederick  Nixon,  Mary  Nixon,  Henry  Carey 
Field,  Jemima  Field  and  Espine  Ward  and  Sophia  his  wife,  of  the 
eighth  part,  William  Ribton  Ward  and  Montgomery  Downes  Nixon, 
of  the  ninth  part,  Jemima  Nixon,  of  the  tenth  part,  the  Rev.  Alex- 
ander Nixon,  of  the  eleventh  part,  the  Rev.  Thomas  James  Oven- 
den,  of  the  twelfth  part,  Alexander  Power,  of  the  thirteenth  part, 
the  said  Adam  Nixoo,  of  the  fourteenth  part,  and  the  said  George 
Rankin,  of  the  fifteenth  part,  the  parties  thereto  of  the  first  fourteen 
parts  conveyed  to  the  said  George  Rankin  Rea's-park  or  Rea's-tene- 
ment  in  fee.  This  deed  contained  a  recital  that  the  legal  estate  in 
those  lands  was  in  the  representative  of  the  trustee  of  Alexander 
Nixon's  will ;  and  the  conveyance  was  not  executed  by  such  repre- 
sentative. 

On  the  26th  of  June  1844,  the  said  Joseph  Rankin  conveyed  the 
lands  of  Rea*s-park  to  Thomas  Kernaghan,  the  appellant's  husband, 
in  fee.  In  1848,  Thomas  Kernaghan  made  a  conveyance  of  all  his 
property  to  trustees,  for  the  benefit  of  his  creditors.  In  1849>  the 
trustees,  having  set  up  Mr.  Eernaghan's  property  for  sale  by 
auction,  Rea's- tenement  was  purchased  by  Edward  Dufiy.  On  the 
investigation  of  the  title  on  behalf  of  the  purchaser,  it  was  objected  ^ 
that  the  property  was  subject  to  the  petitioner's  title  to  dower.  This 
objection  was  afterwards  compromised,  by  the  parties  permitting  the 
purchaser  to  retain  £200  out  of  the  purchase-money,  the  petitioner 
refusing  to  release  her  dower.  On  the  8th  of  August  1850,  the 
lands  of  Rea's-park  were  conveyed  to  Edward  Duffy  in  fee,  by  a 
deed  in  which  the  petitioner  was  named  as  a  party,  but  not  executed 

(a)  6  It.  Eq.  Rep.  8;  S.  C„  3  Dr.  &  W.  388. 


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64 


CHANCERY  REPORTS. 


1859. 
Ch,  Appeal, 

kbbnaohan 
m'nallt. 
Statement. 


hy  him,  and  containing  a  recital  that  the  petitioner  w^  entitled 
to  dower  out  of  the  said  lands,  contingent  on  her  surviving  Thomas 
Kernaghan.  On  the  2l8t  of  January  1861,  said  Edward  Duffy 
conveyed  Rea's-park  to  the  respondents  Charles  M^Nally,  Daniel 
Boylan  and  Thomas  Gartland,  in  fee. 

Thomas  Kernaghan  having  died,  the  petitioner  instituted  this 
suit,  for  the  purpose  of  recovering  her  dower  out  of  Rea's-tenement. 
At  the  hearing  in  the  Court  below,  the  deed  of  the  8th  of  April 
1844  was  given  in  evidence  on  the  part  of  the  petitioner,  who 
had  had  no  opportunity  of  seeing  it  before  that  hearing ;  and,  it 
appearing,  by  the  recitals  in  that  deed,  that  the  legal  estate  was 
outstanding  in  trustees,  the  Lord  Chancbllor  m^de  a  decree  dis- 
missing the  petition.  From  this  order  the  present  appeal  was 
brought.  , 


The  Solicitor-General  (Mr.  R.  Deasy)  and  Mr.  F.  W.  Walshe 
(with  them  Mr.  Richey)^  for  the  petitioner. 
Argument.  The  widow,  in  a  suit  for  dower,  has  a  clear  right  to  have  an 

opportunity  of  trying  her  title  in  the  Master's  office,  or  by  an 
action  at  Law,  if  her  title  to  dower  be  controverted :  Mundy  v. 
Mundy  (a)  ;  Curtis  v.  Curtis  (b)  ;  Dormer  v.  Fortescue  (c) ;  Darcy 
V.  Blake  (d).  And  she  has  also  a  right  to  the  assistance  of  the 
Court,  to  enable  her  to  have  an  opportunity  of  trying  that  title. 
That  is  all  the  relief  we  seek  here,  although  we  have  made  a  case 
which  really  shows  the  petitioner  to.be  entitled.  The  decision  in  ScoU 
V.  Nixon  (e)  shows  that  the  legal  estate  was  vested  in  the  younger 
sons  of  Alexander  Nixon,  and  that  the  trustees  of  his  will  were 
as  much  excluded  from  the  property  as  the  eldest  son  was.  That 
decision  shows  that  the  deed  was  mistaken  in  reciting  the  legal 
estate  to  be  in  the  trustees ;  and  we  only  ask  not  to  be  concluded  by 
this  erroneous  recital.  If  we  be  not.  Sir  Edward  Sugden's  decision 
in  Scott  V.  Nixon  determines  the  whole  case  in  favour  of  the  peti- 
tioner ;   and,  even  if  there  be  anything  like  an  estoppel  in  that 

(a)  2  Ves.  jun.  125.  (6)  2  B.  C.  C.  620,  632. 

(c)  3  Atk.  130.  (d)  2  Sch.  &Lef.  390. 

(e)  6  Jr.  Eq.  Bep.  8;  S.  C,  3  Dr.  &  War.  388. 


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CHANCERY  REPORTS. 


55 


deed,  the  conveyance  to  the  respondent  operates  as  forcibly  in  the         1859. 
petitioner's  favour.  ^J^j^Hl.' 


KEBN1.0HAN 


Mr.  Brewster  and  Mr.  Lawson^  contra.  ^ 

The  deed  states  the  finding  of  the  report,  under  which  the 
property  was  sold ;  and  as  the  petitioner  can  only  make  title 
through  that  deed,  she  is  estopped  from  disputing  the  averments 
in  it :  Bowman  v.  Taylor  (a).  The  deed  clearly  failed  to  pass  a 
legal  estate.  The  younger  children  had  no  colour  of  title,  save 
under  the  will,  and  could  not  be  heard  to  say  that  they  did  ^ot 
derive  their  title  under  it :  Hawhabee  v.  Hawksbee  (b) ;  Anster  v. 
Nelms  (c) ;  Garrard  v.  Tuck  (d) ;  Melling  v.  Leak  (c). 


Arsument, 


The  Lord  Chancellor. 

This  is  a  very  singular  case.  I  think  that  there  ought  to  be 
some  further  inquiry  ;  and  it  would  only  put  the  parties  to  a  needless 
expense  to  leave  the  petitioner  to  institute  pother  suit;  but  the 
petition  of  appeal  does  not  at  all  point  to  the  case  made  here  at 
the  Bar,  nor  was  it  suggested  at  the  hearing  before  me.  Under 
these  circumstances,  I  think  that  there  ought  to  be  a  further 
inquiry,  but  that  the  appellant  must  pay  the  costs  of  the  pro- 
ceedings, which  her  own  conduct  has  rendered  necessary.  I  think 
that  there  must  be  a  reference  to  one  of  the  Masters,  whether 
Mr.  Eemaghan  was  seised  of  these  lands. 


Judgment, 


The  Lord  Justice  op  Appeal. 

The  petitioner,  who  claims  dower  out  of  the  estate  purchased 
by  her  deceased  husband,  naturally  relied  on  the  deeds  which  con- 
stituted his  title.  One  of  them,  being  the  conveyance  under  the 
decree  of  this  Court  to  a  trustee  for  him,  was  produced  by  the 
respondent,  and  was  read,  and  entered  as  the  evidence  of  the  peti- 
tioner. The  effect  of  this  deed,  as  conveying  a  legal  title,  was  in 
fact  the  only  matter  discussed ;  apd  the  Lord  Chancellor  decided. 


(a)  2  Ad.  &  El.  278. 
(c)_l^H.  &Nor.223. 


{h)  11  Hare,  230. 
((0  8C.  B.  231. 


(e)  16  C.  B.  652. 


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1869. 
Ch.  Appeal. 


^  CHANCERY  REPORTS. 

most  properlj,  that  it  did  not  pass  the  legal  estate,  not  having  been 


executed  by  the  heir  of  the  surviving  trustee  in  the  will  of  Alex- 
„^  ander  Nixon,  or  by  a  trustee  legally  constituted  in  his  place.     This 

Ihv'ltf  A  T  T  7 

*      assumed  (and  there  was  no  evidence  to  the  contrary  presented  to 

Judgment,  ^^iQ  view  of  ^he  Court)  that  the  legal  estate  had  passed  to  the 
trustees  in  *  the  vriU  of  Alexander  Nixon,  of  1 766,  as  the  deed 
recited  ;  and  the  objection  to  the  petitioner's  claim,  so  far,  appeared 
to  be  conclusive.  There  were,  however,  several  orders  and  pro- 
ceedings in  ScoU  V.  iVtaron,  in  which  the  lands  had  been  sold  to 
a  trustee  for  the  petitioner's  husband,  entered  as  proofs  on  the  part 
of  the  petitioner;  and  now,  for  the  first  time,  they  are  brought 
under  our  consideration  *  I  do  not  believe  that  there  is  an  aUusion 
made  in  the  case  of  either  the  appellant  or  respondent  to  them. 
The  result  is,  that  they  disclose  a  state  of  the  title  quite  at  variance 
with  the  recital  in  the  deed  of  sale,  on  which  the  petitioner  had 
entirely  rested,  and  on  which  alone  the  Lord  Chancsllok  had- 
acted  in  dismissing  the  petition.  From  thepi  the  real  state  of  the 
title  appears  to  be,  that  the  lands  were  purchased  by  the  <  devisor 
after  the  execution  of  his  will ;  that  they  did  not  pass  to  the 
'  trestees,  but  that  the.  six  sons  claiming  as  devisees  of  the  testator 
became  seised  -and  possessed  of  them,  as  if  they  had  been  well 
devised ;  and  so  had  acquired  iuch  a  title  by  adverse  possession 
as  the  purchaser  was  bound  to  accept.  .  This  evidence  satisfies  the 
object  which  I  had  in  view  in  asking  whether,  besides  the  deed 
of  sale,  there  were  any  deeds  or  facts  on  which  the  dowress  could 
rely,  as  putting  her  claim  on  grounds  difierent  from  those  founded 
on  the  truth  of  the  recitals  of  the  purchase  deed  undet*  the  Court. 
The  consequence  of  the  evidence  I  haye  alluded  to,  as  now  dis- 
closed, is,  either  that  the  petition  should  be  disolissed  without 
^"^Jrejudice,  or  that  we  should  reverse  the  decree,  and  direct  an 
inauiry  into  the  title.  The  mwer  is,  for  aAl  purposes,  the  more 
cqpvenient  course ;  but  it  must  be  on  the  terms,  as  to  costs,  sug* 
gested  by  the  Lord  Chancej^lor. 

Chancery  Appeal  Hearing  Book,  1,/.  330. 


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CHANCERY  REPORTS.  57 


1860. 


Court   of  Sanktttytcs  anH  Sn^olbentp. 

In  re  JOHN  QUIN  a  Bankrupt ; 
Ex  parte  CHRISTOPHER  MOORE.* 


June  6,  14. 


In  this  ease  Christopher  Moore  sought  to  prove  on  the  bankrupt's  A  employed 

B,  a  builder, 
estate  for  £251.  7s.  lid.     The  fbcts,  as  appeared  by  the  affidavit  of  to  take  down 

the  front  wall 
Moore,  sworn  the  30th  of  May  1850,  were  as  follows : — In  1859,  the  of  his  hoose, 

,    ,..     and  execute 
said  Christopher  Moore,  being  desirous  of  taking  down  and  re-build-  some  other  re- 

.  ing  the  front  wall  of  a  house  occupied  by  hi  to,  No.  144  Upper  the  works  were 

Dorset-street,  and  of  making  certain  alterations  in  the  next  house,  }hj*^^ier  of 

No.   145,  entered  into  a  contract  with  the  bankrupt,  who  was  a  ^ouse^^^sel^ed 

builder,  for  the  above  work,  for  the  sum  of  £150.   Some  extra  works,  \  ««J»f .  HP^^ 
'  ^  A,  that  injury 

not  in  the  estimate,  were  done,  and  the  whole  completed  according  was  likely  to 

result  to  his 

to  contract.     On  the  17th  of  September  1859,  the  bankrupt  was  house  from  the 

repairs,  and 

paid  for  the  entire  works,  original  and  extra,  the  sum  of  £177.  that  he  would 

hold  A  respon- 

12s.  8d.     On  the  Idth  of  July  1859>  the  works  being  then  jn  pro-  gibie.  B,upon 

gress,  a  notice  was  served  upon  Moore,  by  Edward  Doran,  who  mentioned  to 
resided  next  door,  at  No.  146,  that  said  alterations  were  likely  to  be  ^i^^  'estimate  of 
injurious  to  his  house,  and  that  Moore  would  be  held  liable  for  any  fou^^ng  ^e! 
damage  caused  by  said  alterations.    Moore  showed  said  notice  to  the  I?iJ^"^^Lj^ 
bankrupt,  who  assured  him  that  the  works  in  progress  eould  not  in  ^^}  ^^®  M^' 

QOtnff  work,    1 
any  way  injure  Dorao's  house,  and,  as  a  guarantee,  indorsed  on  the  bereby  under- 

estimate  of  the  works  a  memorandum,  dated  the  23rd  of  July  1859,  myself  respon- 

sible  for  any 
injury  done  to 
the  adjoining  houses."    Some  works  in  addition  to  these  in  the  estimate  were  done, 
the  contract  was  completed,  and  B  paid  in  full  for  all.    C  brought  an  action  against 

A,  averring  negligence,  anff  alleging  various  injuries  to  his  house  from  the  works. 

B,  upon  being  cal^d  upon  to  settle  or  defend  the  action,  made  no  reply,  and  soon 
after  became  bankrupt  and  absconded.  A,  having  had  to  pay  £191.  7s.  lid. 
damages  and  costs,  and  £60,  his  own  expenses  in  the  action,  sought  to  prove  for 
£251. 7s.  lid. — ^e/</,  that  (supposing  the  memorandum  to  constitute  a  contract 
upon  a  valuable  consideration)  the  damages  which  C  might  recover  against  A  were 
not  necessarily  identical  with  those  contemplated  by  the  guarantee,  and  that  A  could 
not  prove  for  the  above  sum,  either  as  for  a  debt  payable  upon  a  contingency,  within 
8,  257,  or  as  for  a  liability  to  pay  money  upon  a  contingency,  within  s.  258. 

•  Coram  Lynch,  J. 
VOL.11.  8 


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1860. 
Banktcy;  ifC. 

In  re 
QDIN, 

Statement, 


58  CHANCERY  REPORTS. 

in  the  following  words : — "  In  carrying  out  the  foregoing  work,  I 
undertake  to  hold  myself  responsible  for  any  injury  done  to  the 
adjoining  houses,  Nos.  143  and  H6.**  The  works  were  accordingly 
completed  and  paid  for.  On  the  31st  of  October  1859,  Moore  was 
served  with  a  writ  of  summons  and  plaint,  at  the  suit  of  the  said 
Edward  Doran,  who  claimed  £1100  damages  for  the  injuries  alleged 
to  have  been  done  to  his  house.  Moore  called  upon  the  bankrupt 
to  settle  or  defend  the  action,  but  got  no  reply,  and  shortly  after 
the  bankrupt  absconded  from  this  country.  Doran  recovered  in 
said  action  £75  damages  against  Moore,  together  with  £116.  7s.  1  Id. 
costs,  which  sums,  amounting  in  all  to  £191.  7s.  lid.,  Moore  was 
obliged  to  pay.  In  addition  to  the  above  sums,  Moore  had  incurred 
other  costs  and  expenses  in  defending  the  action,  amounting  to  £60. 
Moore  claimed  to  prove  for  the  above  sums,  making,  in  the  whole, 
£251.  78.  lid. 


Argument, 


Mr.  Sidney^  for  the  assignees,  cited  Maples  v.  Pepper  ^) ;  War- 
burg v.  Tucker  {h)\  Young  v.  Winter  {c)  ;  and  contended  that 
Lewis  V.  Peahe  (d)  did  not  apply.  On  .the  point  whether  Moore 
was  entitled  to  recover  the  costs  which  he  had  to  pay  in  the 
action,  he  cited  Mayne-  on  Damages^  pp.  28,  29;  Tindall  v. 
Bell{e) ;  Short  v.  Kallotoay  (f)  ;  Beech  v.  Jones  (g) ;  Pierce  v. 
Williams  (A). 


Mr.  James  Keman^  for  Moore,  referred  to  the  Bankrupt  Act, 
sections  253  to  258,  especially  ss.  2579  ^^B,  and  commented  on 
Tindall  v.  Bell^  and  cited  Lampleigh  v.  Brathwait{i)\  LewU 
V.  Peake  (k) ;  Smith  v.  Compton  (/).    The  form  of  the  guarantee 


(a)  18  C.  B.  177. 

(b)  4  Jnr.,  N.  S..  1142 ;  S.  C,  9  E.  &  B.  914. 

(c)  16  C.  B.  401.  (d)  7  Taunt.  153, 

(c)  11  M.  &  W.  228.  (fj  11  A.  &  E.  28. 

(g)  5  C.  B.  696.  {h)  23  L.  J..  Ex..  322. 

(f>  Hob.  105;  S.  C,  I  Sm.  L.  C.  126.  127. 


(A)  Ubisup. 


(0  3  B.  &  Ad.  407. 


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Argument, 


CHANCERY  REPORTS.  59 

may  be  said  to  be  one  that  sounds  in  damages.    The  contingency        1860. 

was  the  ascertainment  after  the  bankruptcy  of  an  injury  done  before      ^   ^*  9^' 

the  bankruptcy.     It  is  a  hardship,  and  is  contrary  to  the  principle  of         qcin. 

the  Bankrupt  Law,  that  he  who  has  given  up  his  estate  should  be  left 

liable  to  a  demand  ascertained  before  bankruptcy.    If  the  amount  of 

damages  be  ascertained  before  bankruptcy,  why  can  we  not  prove  ? 

— [Ltkchi  J.    Is  it  necessary  to  have  recourse  to  that  section  ?    Is 

this  not  an  existing  debt  ?] — He  cited  Boyd  v.  Robinson  (a).    In 

this  case  the  liability  was  incurred  before  bankruptcy,  therefore  we 

are  entitled  to  prove.    As  to  costs,  he  cited  Lewis  v.  Peake  (b). 

Ltnch,  J. 

This  was  a  claim  made  by  Christopher  Moore,  for  £251.  7s.  lid.,  June  14. 
on  foot  of  an  alleged  indemnity,  indorsed  on  the  contract,  and  dated 
23rd  of  July  1 859.  Moore  was  the  owner  of  a  house  in  Dorset- 
street,  and  had  entered  into  a  contract  with  the  bankrupt,  whereby 
the  bankrupt  was  to  make  certain  alterations  in  Moore's  house. 
After  the  contract  was  made,  and  while  the  work  was  in  progress, 
Edward  Doran,  the  owner  of  the  adjoining  house,  apprehending 
damage  to  his  concerns,  from  the  works,  served  a  notice  on  Moore, 
cautioning  him  respecting  the  apprehended  mischief,  and  threatening 
to  hold  him  responsible  therefor;  upon  this  the  bankrupt  indorsed 
on  his  contract  the  alleged  indemnity,  in  these  words  s — '*In  carrying 
out  the  foregoing  work,  I  hereby  undertake  to  hold  myself  respon- 
sible for  any  injury  done  to  the  adjoining  houses  143  and  146." 
After  this  the  works  proceeded.  The  bankrupt  completed  his  con- 
tract with  Moore,  and  was  paid  in  full.  A  short  time  after,  Quin 
became  bankrupt  and,  absconded.  The  petition  was  filed  on  the 
9th  of  November  1859.  On  the  31st  of  October  1859,  an  action 
was  brought  against  Moore  by  Doran,  for  the  injuries  done  to  his 
house  during  the  alterations  made,  for  changes  injuriously  affecting 
him  in  the  new  works,  and  for  resulting  injuries  in  stopping  his 
trade,  &c.  Negligence  is  alleged  in  the  summons  and  plaint ;  but, 
on  examining  the  pleadings  in  that  case,  and  the  issues  raised,  in 
my  opinion  the  damages  that  Doran  might  recover  against  Moore 

(«)  5  C.  B.,  N.  S.,  Sfn.  (6)  7  Tatmt.  153, 


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Judgment, 


60  CHANCERY  REPORTS. 

1860.        are  not  identical  with  those  contemplated  by  the  memorandum  on 
— ^?— '  '  the  contract;  the  memorandam  contemplates  merelj  injuries  done 

QUiN.  to  the  house  by  the  works  in  execution^  and  would  not,  I  think, 
cover  the  case  of  the  change  of  the  building,  no  matter  how  well 
executed,  which  might  have  rendered  Moore  liable  to  an  action,  as 
for  instance  stopping  ancient  lights,  or  interfering  with  other  ease- 
ments belonging  to  the  acyoining  house.  I,  therefore,  do  not  think 
that  the  amount  of  damages  and  costs  recovered  in  the  action  against 
Moore  is  the  necessary  amouat  of  damages  to  be  recovered  in  an 
action  by  Moore  against  the  bankrupt,  if  ^  such  action  lay  on  this 
memorandum.  In  my  opinion,  any  claim  on  foot  of  that  memoran- 
dum, which  now  exists,  is  plainly  a  claim  for  unliquidated  damages, 
for  not  repairing  or  making  good  any  injury  done  by  him  to  the 
adjoining  house,  in  the  works  executed  by  him.  The  language  of 
the  memorandum  is  not  indemnity  from  any  claim  by  the  owners 
of  the  houses  against  Moore,,  it  is  only  for  responsibility  for  injury 
done ;  and  I  cannot  see  that  these  are  identicaL  It  is  unnecessary 
for  me  here  to  decide  whether  the  contract  disclosed  by  the  memo- 
randum has  really  any  valuable  consideration  to  support  it.  The 
contract  was  then  complete,  and  in  course  of  execution,  and  boond 
Moore  as  well  as  the  bankrupt ;  and  it  is  not  easy  to  see  the  consi- 
deration for  it,  as  it  is  now  sought  to  interpret  ijt ;  but  I  do  not  think 
it  necessary  to  decide  this  point,  as  my  opinion  is^  that  this  claim, 
even  admitting  it  to  be  a  liability  of  the  bankrupt,  is  not  proveable 
in  the  bankruptcy. 

It  is  now  sought  to  prove  against  the  estate  of  the  bank- 
rupt the  claim  which  exists  on  foot  of  the  menLorandum,  against 
the  bankrupt;  and  several  cases  have  been  cited  to  me,  showing 
the  construction  put  on  the  providions  of  the  statute  respecting 
proofs  for  debts  payable  on  a  contingency,  and,  for  liabilities  to  pay 
money  upon  a  contingency.  In  addition  to  the  cases  cited  to  me,  I 
have  two  very  material  cases  on  this  point :  Boyd  v.  Robins  (a), 
on  a  guarantee  (continuing)  for  goods  supplied,  in  which  case  the 
Exchequer  Chamber  reversed  the  decision  of  the  Common  Pleas,  as 
to  the  goods  supplied  after  the  bankruptcy  of  the  guacaator,  and 

Ca)4C.B^N.  S.,749;  in Eiror, S C.  B.,  N.  B.,5G7. 


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CHANCEKY  REPOETS.  61 

Parker  y.  Inee  (a).  These  cases  bring  down  the  decisions  of  the 
Courts  to  the  latest  period  reported,  and  are  in  accordance  with  the 
cases  cited  already.  I  am  not  going  into  any  minute  consideration 
of  the  cases,  or  the  points  of  difference  in  them,  as,  in  my  opinion, 
this  case  does  not  require  for  its  ^decision  any  such  nice  considera- 
tions. Take  the  words  of  the  statute  themselvea,  and  see  if,  by  any 
possibility,  this  claim  can  be  embraced.  Moore,  certainly,  at  the 
time  of  the  bankruptcy,  had  no  debt  due  to  him,  or  no  claim  of  any 
sort  against  the  bankrupt.  The  bankrupt  had  undertaken  to  be 
responsible  for  injury  to  the  adjoining  houses,  and  was  responsible 
for  it,  if  injury  happened,  but  between  him  and  Moore  there  was  no 
debt  and  no  liability  then ;  but  if  Moore  is  called  upon  to  do  what 
the  bankrupt  contracted  to  do,  namely,  to  discbarge  the  damages  for 
injury  done  to  an  adjoining  house,  then  he  will  have  an  action  over 
against  him  on  his  contract :  and  this  contingent  circumstance  of 
liability  is  said  to  be  within  the  statute,  either  as  a  debt  payable 
upon  a  contingency,  or  a  liability  to  pay  money  upon  a  contingency. 
Now  it  seems  to  me  clear  it  is  not  a  debt  payable  on  a  contingency, 
for  it  is  in  no  sense  a  debt  at  all,  and  it  is  not  a  liability  to  pay 
money  oa  a  contingency,  for  there  is  no  liability  to  pay  money  at  all, 
uakas  I  were  to  hokl  that  every  sort  of  liability  in  tort^  which,  in  the 
end,  say  resnlt  in  damages,  is  properly  expressed  by  the  phrase 
liabili^  to  pay  money.  Therelore,  in  my  opinion,  it  is  impossible 
for  me,  upon  the  bnguage  of  the  statute,  and  having  regard  to  the 
decisions  of  all  the  Courts  in  England  on  it,  to  say  that  this  claim 
comes  within  its  provisions,  and  I  consequently  feel  bound  to  rule 
that  this  claim  cannot  be  admitted  as  a  proof.  I  confess  that,  in 
coming  to  this  decision,  on  the  ground  of  the  nature  of  the  claim, 
supposing  it  to  be  otherwise  a  well-founded  one,  I  regret  the  neces- 
sity which  the  language  of  the  statute  and  the  cases  already  decided 
impose  on  me,  and  I  do  not  see  the  policy  of  excluding  from  proof 
any  well-founded  demand,  because  of  any  difficulty  that  may  exist 
as  to  its  ascertainment.  Serious  injustice  may  be  done  parties  with 
perfeotly  dear  rights,  by  this  Ck>urt  rejecting  claims  on  the  grounds 
put  in  many  of  tW  eases ;  and  a  man  may,  through  this  Court,  be 

Ca)  4  H.  &  N.  58. 


JudfWUMt, 


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62  CHANCERY  REPORTS. 

1860.        rendered  insolvent  to  discharge  liabilities  quite  as  proper  to  be  dis- 

v,i»y   '— ^ '  charged  as  any  ascertained  debt  due  at  the  time  of  his  bankruptcy. 

QUiN.        However,*  I  have  but  to  administer  the  law  as  established ;  and  I 


Judgfkent. 


shall  be  glad  if  I  am  shown  to  be  wrong  in  the  decision  I  have 
come  to. 

Let  the  claim  be  rejected,  with  costs. 


4prt/2 
Mayi 


In  re  EDWARD  RUBY  JOHNSTON  to  Insolvent.^ 


The  decision  in  This  case  is  reported,  on  the  point  upon  which  it  formerly  came 

this  case,  ante, 

Tol  9,  p.  559,  before  the  Court,  ante,  vol.  9,  p.  559,  where  will  be  found  the  mate* 

J.        '        rial  facts. — Judge  Lynch  haying  directed  a  reference  to  the  Chief 

quired  by  an  Clerk  to  inquire  and  report  as  to  the  debts  of  the  insolvent,  alleged 

insolyent,  sub-  ^  ^ 

seguendj  to  to  have  been  incurred  subsequently  to  his  insolvency,  thcr  case  now 

his  insolyency, 

is  charged  with  came  before  the  Court  upon  the  report  of  Mr.  Kelly,  acting  for  the 

a  first  trust  for 

his  subsequent  Chief  Clerk.    The  debts  in  the  first  schedule  to  the  report  amounted 

and,  before  the  to  £48.  3s.  lid.,  those  in  the  second  schedule  (including  £250  due 

tach  such  sub^  ^o  Mrs.  Ackleston,  the  sister  of  the  insolvent)  to  £1337-  8s.  3d., 

^^^pn^    making  in  aU  £1385.  128.  2d.    The  funds  to  meet  the  above  Uabili- 

Ee^satisfied**  'ties  consisted  of  £1 150  realised,  including  the  sum  of  £273.  Is.  lid. 

that  theinsol-  lodged  in  Court;  a  sum  of  £500,  to  which  the  insoWent  was  en- 
rent  is  of  abi- 

lity  to  pay  his  titled  in  expectancy,  and  a  debt  of  £40,  which  was  pronounced  very 
scheduled 

debts  ;   and      doubtful,  if  not  bad. 
this  ability  to 
pay  is  not  to 

be  determined        -m,      t\   ^    rr  n       i 

by  the  casual       Mr.  JJ.  C.  Heron,  for  the  assignee. 

^IdTbut  V  ^^*  ^'  ^'  -^^Ty*  ^^^  ^^^  insolvent. 

tlie  possession 

of  assets  ultra 

the  liabilities  t  «^««    t 

subsequently  ^™^«>  •^• 

mcurred.  "pi^jg  ^^^  comes  afeain  before  me  upon  the  report  of  Mr.  Kelly, 

Judgment,     acting  for  the  Chief  Clerk,  upon  the  reference  which  I  offered  to  the 

*  Coram  Ltnob,  J. 


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CHANCERY  REPORTS.  63 

assignee,  respecting  the  debts  alleged  by  the  insolvent  to  have  been        I860. 

Btmktcy.tffc, 

incarred   since  his  insolvency.     Already  in  this  case  I  have  re- ' 

In  re 

marked  that  the  order  made,  attaching  the  subsequently  acquired  johnston. 
funds  of  the  inHolvent,  seemed  to  me  to  have  been  made  before  the  j  jgnent 
facts  were  ascertained  which  could  warrant  any  order  beiug  made 
attaching  them  as  funds  in  the  insolvency ;  but  I  have  decided,  and 
I  abide  by  that  decision,  that  the  saving  in  the  order  of  the  20th  of 
October  leaves  the  case  now  to  be  dealt  with  by  me  as  if  the  money 
were  not  already  paid  into  Court  to  the  credit  of  this  matter,  and 
that  I  am  free  to  consider  whether  it  is  at  all  a  fund  proper  to  be 
dealt  with  in  the  insolvency.  In  looking  into  the  provisions  of  the 
statute,  I  think  subsequently  acquired  property  of  the  insolvent  is 
certainly  charged  with  a  first  trust  for  his  subsequent  creditors,  and 
that  it  never  was  meant,  or  could  be  meant,  that  any  funds  in  his 
possession  subsequently  were  actually  bound  with  an  existing  liability 
to  be  brought  in  as  funds  in  the  insolvency.  To  hold  that  would 
lea?e  the  insolvent  incapable  of  conducting  any  business  until  he 
had  discharged  all  his  schedule  debts.  However,  I  cannot  yield  in 
any  way  to  Mr.  Barry's  argument  as  to  the  anticipated  legislation  ' 

in  England  on  this  subject ;  it  is  not  as  yet  even  the  law  there : 
and  were  it  law,  I  could  not  regard  it  here,  although  I  do  hope  and 
trust  that  the  law  will  always  stand  on  the  same  foundation  in  both 
countries,  and  that  we  may  have  the  same  principles  and  the  same 
procedure  in  each.  We  have  the  same  Court  of  Appeal,  and  our  pre- 
cedents and  authorities  ought  to  be  of  the  like  operation  in  each  ; 
and,  I  think,  everything  making  our  practice  different,  or  our  la^s 
not  the  same,  is  a  great  mischief  to  this  country.  But  I  have 
nothing  to  do  with  any  principle  but  that  to  be  deduced  from  the 
Acts  before  me ;  and  I  hold  the  principle  is,  that  before  I  attach 
subsequently  acquired  property,  I  must  be  satisfied  that  the  insol- 
vent is  of  ability  to  pay  his  scheduled  debts ;  and  this  ability  to  pay 
is  not,  I  think,  to  be  determined  by  the  casual  possession  of  a  fund 
in  his  name,  but  by  the  possession  of  assets  ultra  the  liabilities  sub- 
sequently incurred.  This  principle,  being  established,  leads  me  then 
to  consider  the  report  before  me.  First,  I  am  asked  to  declare  that 
the  alleged  debt  of  £260  was  never  a  debt,  or  that  it  was  not  to  be 


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64 


CHANCERY  REPORTS. 


1860. 
Banktcy,,  ^. 

In  re 
JOHNSTON. 

Judgment. 


paid  until  after  the  debts  under  the  insolvency.  The  report  is  in- 
accurate, in  not  finding  whether  it  is  a  debt  or  not :  however,  I  have 
now  on  this  motion  to  determine  that  question  on  the  evidence  before 
me ;  and,  in  my  opinion,  finding  the  evidence  all  one  way,  and  no 
suggestion  made  to  lead  me  to  doubt  its  truth,  I  feel  bound  to  declare 
that  it  is  a  debt.  A  sister  can  lend  to  her  brother  as  well  as  to  a 
stranger,  and  the  expected  kindness  and  forbearance  of  a  near  rela- 
tion is  no  foundation  for  declaring  the  loan  not  to  be  a  debt ;  and 
merely  regarding  now  the  question  of  ability  to  pay  by  means  of  subse- 
quently acquired  property,  it  would  be  a  strong  measure  for  me 
to  confiscate  this  money  of  his  sister,  in  order  to  raise  up  an  ability 
to  pay  by-gone  debts,  and  this'  in  direct  opposition  to  the  only  evi- 
dence, in  the  case.  Taking,  then,  Mrs.  Ackleston's  debt  as  still  due, 
the  report  shows  me,  in  first  schedule  £48.  3s.  lid.,  in  second 
schedule  £1337.  8s.  3d.,  making  a  total  of  £1386.  12s.  2d.;  and 
against  this  the  assets  are  £1150  realised,  an  expectancy  on  a 
sum  of  £500,  and  a  bad  debt  of  £40.  I  do  not  think  this  shows  a 
present  ability  to  pay  the  schedule  debts,  for  I  do  not  think  it  shows 
a  present  ability  to  discharge  his  subsequent  debts. 

I,  therefore,  in  this  state  of  facts,  must  declare  that  the  insolvent 
is  not  shown  to  me  to  have  such  ability,  and  hence,  that  this  fund 
is  not  a  fund  properly  applicable  to  the  matter  of  the  insolvency ;  and 
consequently  I  will  order  this  fund  to  be  restored  to  the  insolvent. 

The  only  matter  I  have  then  to  consider  is  the  costs.  The  motions, 
when  made,  were  prima  facie  well-founded ;  and  the  realisation  of 
the  claim  then  existing  would  have  discharged  all  the  debts.  By  sub- 
sequent compromise,  now  unquestioned,  the  assets  are  diminished 
below  sufficiency ;  but  I  think  it  proper  to  give  the  costs  of  the  pro- 
ceedings to  the  assignee,  up  to  the  hearing  of  the  motion  before  me ; 
but  the  reference  was  taken  at  the  assignee's  own  risk,  and  I  must  hold 
that  he  substantially  failed  in  every  branch  of  it,  and  that  I  should 
give  the  insolvent  the  costs  o^  these  proceedings.  However,  on  the 
whole,  setting  one  off"  against  the  other,  I  will  make  the  order  with- 
out costs  to  either  party,  and  give  the  insolvent  back  the  £50  lodged 
in  Court. 


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CHANCERY  REPORTS.  65 


1860. 
Banktcy,,  ^c. 


In  re  JOHN  M'KENNA  a  Bankrupt.* 


June  i 


In  this  case,  bj  an  order  of  this  Coort^  made  on  the  27th  of  March  A^abanknipt, 

haying  become 

1860,  it  was  (amongst  other  things)  ordered  ''  that  the  carriage  of  able  to  pa^  in 

full,    obtained 

all  proceedings  in  the  matter  of  this  baokmptej,  after  the  creditors  an  order  of  tbe 

shall  have  been  paid  20s.  in  the  £1,  and  that  this  order  has  been  ingthat,  upon 

complied  with,  shall  be  re-convejed  by  the  aMigaees  in  this  matter  to  ^tara^2oL^ 

the  banlumpt.''    The  order  also  made  payment  of  the  assignees'  costs  pa%ig  Uie  «h 

a  condition  precedent  to  the  transfer  of  the  carriage  of  proceedings  and  Jh^^^<!a^^ 

re-assignment  of  the  estate.     On  the  said  27th  of  March,  the  bwik-  ?^    proceed- 
°^  '  mgs  in  bank. 

rapt  lodged  to  the  crt^lit  of  the  bankruptcy  DMtter  a  sufficient  sum  raptc^r  sbonld 

"^  be  transferred, 

to  pay  the  creditors  20s.  in  the  £1,  and  they  were  afterwards  paid  and  the  estate 

re-assigned  to 
in  full,  and  the  said  order  complied  with,  sare  as  to  the  payment  of  him.  The  cre- 

«  .  .  XV.  ,...  .^.  ditors    were 

the  assigneer  costs.   Owmg  to  a  delay  in  the  taza^A  of  these  costs,  paid  in  fuU; 

the  bankrupt  was  unable  to  have  the  matter  entered  for  a  final  audit,  the d^of the 

or  4o  proeuR}  a'  reassignment  of  his  estate  and  efl^ts.    The  bank-  b^|^p^  ^ 

rupt  having  applied  to  Henry  Thomas  Walsh,  the  trade  assignee,  ^^^J^^^A 

for  certain  bills  of  exchange,  drawn  by  the  bankrupt  on  one  John  ^**  nnable  to 

Nugent,  and  indorsed  to  the  said  Walsh,  Walsh  lodged  the  said  bills  «>»^»  a?d  get 

the  carnage  of 
with  Mr.  M.  Murphy,  the  official  assignee,  who  handed  them  to  proceedings 

transferred, 
the  bankrupt.     The  official  assignee,  upott  being  applied  to,  gave  and  the  estate 
_-.      ^  re-assigned. 

Mr.  Grerrard,  the  bankrupt's  solicitor,  on  the  19th  of  May  I860,  UpongivingB, 
.,     «  „      .  ^,      .^  the  official  as- 

the  following  authonty :—  aignee,  a  letter 

"Deab  Sir — ^If  you  lodge  with  me  a  written  guarantee,  relieving  b  iSd'ci^e 

official  and 
trade  assignees,  A  got  an  authority  from  B  to  take  proceedings  in  the  names  of  B  and  C 
for  the  recoTcry  of  debts  due  to  the  estate.  A,  having  brought  an  action  in  the  names 
of  B  and  C,  was  served  by  C  with  notice  to  discontmue,  on  the  ground  that  he  had 
no  anthority  to  use  G's  name.  The  defendant  in  the  action  took  defenoe,  and  gave 
notice  of  motion  to  set  aside  the  summons  and  plaint,  on  the  same  ground.  This  Court, 
having  been  ajjplied  to  while  the  motion  in  the  Law  Court  (C,  P.)  was  pending, 
ordered  that  said  motion  be  not  moved,  that  the  action  be  proceeded  with,  and  that 
C  should  pay  the  costs  of  this  motion  and  of  tht  motion  in  the  G.  P. 

•  Coram  Ltnch,  J. 


Note. — In  this  case  application  was  made  to  the  Court  on  a  former  day  to 
grant  an  allowance  to  the  bankrupt.  The  Court,  having  ascertained  upon  inquiry 
that  the  bankrupt  had  property  over  and  above  what  went  to  pay  20s.  in  the  £i, 
refused,  on  that  ground,  to  grant  the  allowance. 

VOL.  11.  9 


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66 


CHANCERY  REPORTS. 


1860. 
Banktcy.,  jfc. 

In  re 
m'kenna.  V 

Statement. 


the  assignees  from  any  demand  for  costs,  I  will  allow  you  to  use  my 
name,  and  that  of  Mr.  Wabh,  in  suing  for  any  debts  due  to  the 
estate  of  Mr.  M*Kenna;— Yours,  "  Michael  Mubphy." 

Thereupon  Mr.   Gerrard  sent  Mr.  Murphy  the  following  in- 
demnity : —    . 

"Bo  JOHN  M*KENNA. 
**  To  MicHAXL  MuBPHT  and  Hbnbt  Thomas  Walsh,  Esqn. 
«  SiBS — I  hereby  personally  undertake  to  indemnify  you,  as  assig- 
nees of  John  M'Kenna,  against  finy  costs  or  expenses  incurred  or  to 
be  incurred  in  suing  for  the  outstanding  debts  due  to  the  bankrupt's 
estate,  or  otherwise  in  relation  thereto. 

"  Samuel  Gebbabd." 
On  the  13th  of  Jane  the  bankrupt  commenced  an  action  in  the 
Court  of  Common  Pleas,  in  the  names  of  the  official  and  trade 
assignees,  against  Nugent,  on  foot  of  said  bills.  On  the  same  day 
notice  was  senred  by  Walsh  upon  the  bankrupt  to  discontinue,  on 
the  ground  that  he  had  no  authority  to  use  Walsh's  name,  and 
Nugent  lodged  £15  with  the  official  assignee  on  account  of  the 
bankrupt's  demand.  Nugent  filed  his  defence,  and  on  the  19th  of  June 
the  bankrupt  received  notice  of  a  motion  in  the  Court  of  Common 
Pleas,  to  set  aside  the  summons  and  plaint  That  motion  was  still 
pending,  and  the  bankrupt  now  applied  to  this  Court,  pursuant  to 
notice,  that  he  be  at  liberty  to  continue  the  proceedings  taken  by 
him,  in  the  names  of  the  assignees,  against  John  Nugent,  in  the 
Court  of  Common  Pleas,  notwithstanding  the  notice  of  motion  to  the 
said  Court,  of  the  19th  of  June,  and  for  the  costs  of  the  motion  to  be 
paid  by  the  said  Henry  T.  Walsh  or  his  solicitor  personally. 


Mr.  GambUy  for  M'Eenna. 

Mr.  Dowse f  for  Walsh. 

Argument.  The  bankrupt  should  in  the  first  instance  have  got  the  order  of 

the  Court  authorising  him  to  use  the  assignees'  names.     Here  Walsh 

is  a  trustee  for  the  creditors.     No  man  has  power  to  use  a  trustee's 

name  without  his  consent.    If  it  be  necessary  to  apply  to  the  Court 


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CHANCERY  REPORTS,  67 

now,  it  was  necessary  in  the  first  instance.     He  cited  Bourke  v.        1860. 
Murray  {a).  B^aUu^c. 

Mr.  GambU.  mkemna. 

The  assignee  is  not  an  ordinary  trustee  ;  he  is  the  officer  of  the     Argumenu 
Court. 

Lyhch,  J. 

It  has  been  argued  here  that  Mr.  M*Kenna  ought  not  to  be      Judgment. 
permitted  to  proceed  with  this  action  against  Mr.  Nugent,  on  the 
grounds' that  there  is  not  so  much  due  as  is  sued  for,  and  that  the 
amount,  being  under  £20,  ought  not^to  be  sued  for  in  the  Superior 
Courts.     I  do  not  know  enough  of  the  merits  of  that  case  to  go  into 
any  question  of  that  kind.    I  have  nothing  to  do  with  the  merits 
of  that  case.     Mr.  M*Eenna  paid  all  his  creditors  20s.  in  the  £1, 
and  he  w^  in  a  condition  in  April  last  to  have  got  a  re-assignment 
of  his  estate,  and  a  legal  title  to  institute  proceedings  in  his  own 
name  for  the  recovery  of  this  debt ;  but  he  was  stopped  from  doing 
80,  by  the  agent  of  the  commission  not  furnishing  his  costs,  so  to 
enable  the  bankrupt  to  pay  them  and  get  back  his  estate.     If  the 
bankrupt  had  been  in  that  position,  no  one  could  have  interfered 
with  his  proceedings  to  recover  the  amount  of  these  securities. 
There  was  indeed  no  special  order  of  this  Court  to  bring  the  action, 
but  there  was  a  general  order  that  the  carriage  of  the  proceedings 
should  he  given  to  the  bankrupt,  on  his  paying  the  20s.  in  the  £1, 
and  the  costs.    It  would  have  been  more  regular  to  have  obtained 
the  sanction  of  this  Court  before  bringing  the  action,  for  the  Court 
would  not  allow  any  action  to  proceed  under  its  authority  unless 
it  saw  that  it  was  right ;  and  if  any  person  has  any  just  reason  to  show 
why  the  action  should  not  be  brought,  it  can  be  stated.    But  here  the 
trade  assignee  is  the  person  interfering  to  prevent  the  action  from 
being  brought  in  his  name.     Now,  as  long  as  he  remains  the  officer 
of  the  Court,  he  is  bound  to  submit  to  the  directions  of  the  Court ; 
and  I  cannot  sanction  that  he,  an  officer  of  this  Court,  should,  in 
defence  of  a  debtor  of  the  bankrupt,  interfere  to  stop  an  action.   Why 
should  I  interfere  between  Mr.  M'Eenna  and  his  debtor  ?     If  the 
(a)  10  If.  Com.  Law  Rep.,  App.,  xi. 


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1860.  ' 
Btnktcy,,  4^. 

In  re 
M^KENNA. 

Judgment. 


68  CHANCERY  REPORTS. 

trade  assignee  took  exception  to  the  proceeding  with  the  action, 
and  brought  it  before  me  in  a  formal  manner,  I  would  have  con- 
sidered it ;  but  I  cannot  sianction  that  Mr.  Walsh,  the  trade  assignee, 
should  of  his  own  caprice  interfere  to  stop  the  action.    I  will  sanc- 
tion the  action  already  brought,  and  let  Mr.  M*Eenna  proceed  as  he 
may  be  advised.     The  only  question  for  consideration  was,  whether 
the  assignees  are  sufficiently  indemnified,  and  I  think  they  are.     I 
do  not  consider  that  Mr.  Walsh  has  the  slightest  interest  in  the 
matter.    If  he  have  any  interest,  why  is  it  that  he  has  so  ?    Because 
the  agent  had  not  his  costs  ready  to  be  taxed,  and  delayed  famish- 
ing them  from  April  to  June.     That  was  the  only  reason  why  Mr. 
M*Kenna  had  not  got  the  assignment  of  his  estate,  to  enable  him  to 
have  his  action  tried  in  his  own  name.     Mr.  Walsh  is  the  officer  of 
the  creditors  up  to  this  time.     He  has  attempted  to  interfere  with 
the  action  brought  by  the  bankrupt.     I  direct  that  the  motion  in 
the  Common  Pleas  be  not  moved,  and  that  the  action  be  proceeded 
with.    I  also  direct  that  Mr.  Walsh,  the  trade  assignee,  do  pay  the 
costs  of  this  motion,  together  with  the  costs  of  the  said  motion  in  the 
Common  Pleas,  necessarily  and  properly  incurred  by  the  bankmpt, 
by  reason  of  Mr.  Walsh  so  proceeding,  up  to  the  22nd  of  June  inat. 


Note.— Vide  Lowes  y.  Bott  (16  M.  &  W.  300, 362) ;  Spicer  y.  Todd  (1  DowL 
306) ;  Whitehead  y.  Hughes  (2  DowL  258) ;  Emery  y.  Mucklow  (10  Bing.  23). 


Jufy  31. 
August  1, 


In  re  THOMAS  LOCKHART  a  Bankrupt.* 


Where  a  bank-  This  was  a  sitting  for  the  final  examination  of  the  bankrupt.     The 
rapt  had  traded 

recklessly,  by    passing  of  the  final  examination  was  opposed  by  the  trade  assignee, 
means   of  ac-        ,,.,.. 

commodation    and  by  individual  creditors,  on  the  ground  that  the  bankrupt  had 
bills,  and  had        j  j         i_i      i       «, 

got  extensiY©    traded  recklessly,  by  means  of  accommodation  bills,  and  had  re« 
credit   by   re- 
presentations that  he  was  solvent,  and  that  said  bills  were  for  valne,  the  Court 
adjourned  his  final  examination,  sine  die,  npon  the  state  of  fiftcts  disclosed  by  his 
schedule. 

•  Coram  Lynch,  J. 


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CHANCERY  REPORTS.  69 

presented  said  bills  to  be  bills  £(>r  value,  and  also  had  made  other         I860, 
wilful  misrepresentations  as  to  the  state  of  his  affairs,  and  thereby  '^"'^"_?^' 
got  large  credit.     The  bankmpt  was  a  proTision  merchant,  and   ^ockhabt. 

Army  and  Navj  contractor.    His  liabilities,  as  appeared  by  the        

schedule,  were  jC42,880,  and  his  assets  consisted  merely  of  some 
plant  necessary  to  carry  on  his  business,  debts  due  to  him,  and 
household  furniture,  but  no  stock  in  trade ;  learing  net  liabilities 
£25,995.  The  dealings  mentioaed  in  the  schedule  commenced 
in  Jane  186B,  at  which  time  the  debts  due  by  the  bankmpt 
were  £8770,  and  his  assets  £1690.  In  the  five  months  pre- 
vious to  his  stoppage,  the  bankrupt  had  reoeived  and  disbursed 
£242,102.  The  amount  of  bills  discounted  from  December  1859 
to  May  1860  was  £82,306 ;  and,  of  this  amount,  £32,205  con- 
sisted of  aocommodatioo  bills,  which  the  bankrupt  had  repre- 
sented to  creditors  to  be  for  Yalue.  Most  of  these  accom- 
modation bills  were  drawn  upon  the  father  of  the  bankrupt,  who 
carried  on  the  same  trade  in  Glasgow.  As  the  bills  drawn  on 
the  bankrupt's  father  arrived  at  maturity,  they  were  retired  by 
means  of  accommodation  bills  drawn  upon  other  parties.  The 
special  losses  in  the  two  years  were  put  down  at  £7341.  Part 
of  the  said  sum  of  £7341  was  the  loss  on  a  contract  for  salt  pro- 
visions, taken  at  32s.,  when  the  market  price  was  iOs.,  and  expense 
of  caring  5b^  giving  a  loss  of  13s.  per  cwt.  £1098,  another 
part  of  said  £7341,  was  the  loss  on  a  eontraet  for  mess  beef.  It 
appeared  that  the  bankrupt  purchased  beef  in  the  Dublin  market 
at  40s.,  which  he  sdd  in  Glasgow  and  Liverpool  at  21s.  to  288.  at 
the  utmost  Sundry  trade  charges  were  set  down  at  £3000. 
These,  with  many  other  items,  constituted  the  losses  which  led 
to  the  bankruptcy.  The  bankrupt  admitted  that  a  sum  of  £2400, 
doe  to  a  Mr.  Geale,  a  victoaller,  consisted  of  debts  contracted 
in  January,  February  and  March  1860,  and  that  it  included 
the  amount  of  two  bills  on  which  Geale  had  put  his  name,  for 
the  bankrupt's  accommodation. 

In  explanation  of  two  statements  of  his  affairs,  the  one  made 
on  the  21st  of  April  last,  showing  his  assets  to  be  £18,000,  and 
his  liabilities  £6094,   and  the  other  made  on  the  12th   of  May 


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70 


CHANCERY  REPORTS. 


1860. 
Banktcy,,  j-c. 

In  re 
LOCKHART. 

Statement* 


last^  and  showing  his  assets,  over  and  above  liabilities,  to  be 
£3000,  the  bankrupt  stated  that,  by  the  liabilities  in  the  first 
statement,  he  only  meant  those  v^hich  he  had  to  meet  between 
the  21st  of  April  and  the  1st  of  May,  and  that  the  second  state- 
ment was  drawn  up  on  the  same  principle.  Mr.  Megaw,  the  trade 
assignee,  proved  that  the  bankrupt  had  made  several  representa- 
tions to  him  as  to  the  bankrupt's  solvency,  which  induced  him  to 
give  the  bankrupt  credit  for  wheat,  in  April  and  May  I860,  to 
the  amount  of  £1000.  He  also  expressed  his  dissatisfaction  at  the 
way  the  bankrupt's  books  were  kept,  and  stated  that  the  ^bankrupt 
had  entered  into  contracts  which  could  not  turn  out  otherwise  than 
ruinous  to  him.  These  statements,  as  to  solvency,  the  bank- 
rupt said  he  did  not  remember.  It  was  proved  that  the  amount 
of  discount  on  the  bankrupt's  accounts  in  the  National  Bank,  from 
June  1858  to  May  1860,  was  £1160.  Mr.  Hardy,  the  manager 
of  the  National  Bank,  deposed  that  the  bankrupt  always  repre- 
sented that  the  bills  he  was  discounting  were  for  value,  else  the 
bank  would  have  nothing  to  say  to  them.  When  the  first  state- 
ment (that  of  April  kst)  was  produced  to  him,  he  thought  it  re- 
presented the  actual  state  of  the  bankrupt's  affairs  at  the  time, 
and  not  the  mere  requirements  for  the  month.  In  consequence  of 
the  satisfactory  nature  of  the  accounts,  which  he  had  no  reason  to 
doubt,. and  the  explanation  of  the  bankrupt's  father,  who  stated 
that  the  bankrupt's  position  was  an  excellent  one,  he.  (Mr.  Hardy) 
agreed  to  advance  him  £2000,  to  enable  him  to  carry  on  his 
monthly  contracts  with  the  Government.  That  amount  was  over- 
drawn, and  he  was  very  much  annoyed  at  it.  The  second  state- 
ment was  then  furnished.  He  repudiated  the  idea  that  he  held 
out  any  hope  that  any  further  advance  would  be  made  until 
the  statement  was  inquired  into.  That  inquiry  was  made,  after 
which  the  bank  refused  to  advance  any  more  money. 


Argument,  Mr.  D.  C.  HeroHy  for  the  trade  assignee,  asked  the   Court  to 

adjourn  the  final  examination  sine  die,  and  to  refuse  protection ;  and 
relied  upon  In  re  Keon  (a). 

(a)  lOIr.  Eq.Rep.  113, 


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CHANCERY  REPORTS.  71 

Mr.  Levy,  for  Mr.  Geale  and  another  creditor.  .  1860. 

^  Sanktcy,,   fyc. 

^       In  re 
Mr.  James  Keman^  ior  the  bankrupt,  submitted  that,  though   lockhart. 

the  Court  might  not  approve  of  the  conduct  of  the  bankrupt,  the      a^^^m. 

justice  of  the  case  would  be  met  by  passing  the  final  examination, 

and  letting  the  assignees  enter  an  objection  to  the  certificate.    In 

re  Keen  was  a  case  of  forgery,  fictitious  names  having  been  put 

on  bills. 


Lynch,  J. 

This  case  has  occupied  a  good  deal  of  time,  but  not  more  than  Judgment, 
it  deserves,  for  it  is  a  case  of  very  great  importance  to  the  mercan- 
tile world ;  a  case  in  which  this  Court  is  bound  to  remember  the 
interests  of  the  mercantile  community,  and  the  protection  to  which 
it  is  entitled.  Unfortunately,  the  investigation  cannot  tend  much 
to  the  benefit  of  the  creditors,  for  whom  there  are  very  little  assets, 
to  go  against  the  enormous  liabilities  of  the  bankrupt ;  but  the 
Court  has  a  public  duty  to  discharge  towards  the  mercantile  world, 
which  looks  for  protection  against  fraudulent  traders  coming  into 
the  Court,  and,  as  a  matter  of  course,  passing  through  it.  In  deal-^ 
ing  with  the  case,  I  shall  first  take  the  schedule  containing  the 
representations  of  the  bankrupt  himself;  and  looking  at  those 
representations,  they  seem  to  well  warrant  the  few  pertinent  obser- 
vations made  by  Mr.  Lfivj/  in  reference  to  it.  There  is  in  the 
schedule  a  statement  of  the  affairs  of  the  bankrupt  on  the  2nd  of 
June  1858,  from  which  it  appears  that  he  then  owed  debts  amount- 
ing to  £8770,  and  I  should  be  almost  justified  in  stating  that  there 
was  not  a  fraction  of  assets  to  meet  them.  There  are  put  down 
as  good,  bad  and  doubtful  debts  £3100,  and  goods  in  hand  to  the 
amount  of  £1600.  There  is  no  such  thing,  for  the  goods  spoken  of 
are  merely  the  implements  by  which  the  bankrupt  carried  on 
his  trade ;  and  he  was  utterly  without  capital  to  enable  him  to 
go  on  with  his  trade  at  that  time  ;  so  that  the  state  of  his 
affairs  in  June  1858  was,  that  he  owed  £8770,  three-fourths  of 
which  consisted  of  accommodation  transactions,  showing  a  trade  , 
bolstered  up'and  forced  on  through  means  of  accommodation  bills, 


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72  CHANCERY  REPORTS. 

I860.  with  scarcely  a  fraction  of  assets.  No  doubt  it  is  stated  that 
Ban  ey.,  »c.  ^^^  bankrupt  had  large  transactions  afterwards.  But  would  any 
LOCKHABT.    ^^^  ^  justified  in  entering  into  large  and  extensive  transactions 

—         commencing  in  that  way?      Mr.  Keman  has  asked  if  this  Court 
Judgments 

would  prevent  speculation  ?  It  will  not.  Trade  generally  has  specu- 
lation connected  with  it,  and  an  honest  trader  may  be  brought  down 
in  the  mercantile  world  and  compelled  to  become  a  bankrupt. « It  is  for 
the  benefit  of  trade  that  legitimate  speculation  should  be  encouraged ; 
but  that  speculation  is  not  gambling,  nor  risking  your  neighbour's 
money,  having  none  of  your  own  to  put  in  peril.  In  the  present 
case,  the  bankrupt  was  obliged  to  resort  to  accommodation  transac- 
tions to  take  him  out  of  the  state  of  insolvency  he  was  in  in  June 
1858,  and  then  commenced  a  career  of  greater  accommodation  trans- 
actions to  float  him  on  in  the  mercantile  world,  and  enable  him  to 
come  before  mercantile  people  with  accommodation  bills  as  if  they 
were  legitimate  trading  transactions.  If  the  case  came  before 
the  Court  on  the  state  of  things  in  June  1858,  as  disclosed  by 
the  schedule,  it  would  call  for  the  greatest  condemnation  by  tlte 
Court  on  a  trader  who  so  conducted  himself.  The  bankrupt  en- 
tered into  a  large  Navy  contract  in  October  1859>  speculating  on  a 
fall  in  the  price  of  cattle,  when  the  opposite  conclusion  might  have 
been  more  naturally  drawn.  Is  it  honest  dealing  to  go  into  the 
commercial  world  and  raise  money  on  such  speculations  ?  And  how 
was  it  efiected  ?  By  accommodation  transactions  with  his  father,  the 
representation  or  pretence  being  that  they  were  bills  for  value,  and  not 
accommodation  kites  set  up  to  carry  on  a  false  and  fictitious  trade.  On 
the  patent  facts  set  out  in  the  schedule,  this  Court  would  not  be  doing 
justice  to  the  mercantile  world  if  it  did  not  state  that  no  such  schedule 
could  pass  here  without  the  strongest  condemnation.  Unfortunately, 
accommodation  bills  are  used  in  trade.  It  is  well  known,  however,  that 
a  man  will  lose  credit  if  it  be  understood  that  he  deals  in  them. 
To  avoid  this  loss  of  credit,  the  bankrvpt  represented  that  they 
were  bills  for  value,  and,  on  the  foith  of  that  misrepresentation, 
he  got  enormous  credit.  In  April  last>  he  made  a  statement  ai  his 
circumstances;  and  if  it  was  an  account  of  a  month's  liabilities 
only,  as  stated,  why  make  a  statement  of  all  his  assets  ?     If  all 


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In  re 
LOCKHART. 

Judgment, 


CHANCERY  REPORTS.  73 

the  assets  were  on  one  side  of  the  account,  why  should  not  all  I860, 
the  liabilities  be  on  the  other?  K  such  were  the  case,  any  man  ^^*  Q^^gf* 
would  understand  the  document.  The  bankrupt  would  not  pledge 
his  oath  that  he  told  Mr.  Hardy,  of  the  National  Bank,  that  those 
were  only  a  month's  liabilities.  Independent  of  Mr.  Hardy's  evi- 
dence, the  document  itself  would  go  to  show  that  it  was  intended 
to  be  a  representation  of  the  bankrupt's  circumstances  at  the  time ; 
otherwise,  what  would  be  the  meaning  of  Mr.  Hardy's  statements 
that,  if  the  account  were  true,  the  bankrupt  was  then  in  a  solvent 
state  ?  That  observation  would  not  be  applicable  to  a  month's  account, 
and  would  only  apply  to  a  statement  meant  to  show  that  the  bank- 
rupt was  in  a  complete  state  of  solvency.  If  this  view  requires 
confirmation,  the  statement  made  in  May  abundantly  supports  it ; 
and  both  documents  show  that  the  statement  was  wilfully  and 
deliberately  made,  for  the  purpose  of  procuring  a  large  loan  to 
himself.  Poor  men  are  brought  to  justice  for  taking  small  sums 
from  their  neighbours;  but. to  filch  money  out  of  another  man's 
pocket  by  force  is  a  lesser  crime  than  for  a  man  to  go  into  the 
mercantile  world,  and  put  into  his  pocket  money  which  he  knows 
he  never  can  pay  back.  The  man  who  represents  that  he  has 
large  transactions  for  value  in  the  way  of  trade,  and  by  that  means 
obtains  in  the  mercantile  world  credit  to  which  he  is  not  entitled, 
is  guilty  of  a  greater  offence  than  stealing  money  from  his  neigh- 
bour ;  for  such  conduct  strikes  at  the  root  of  all  confidence  in  trade, 
and  does  great  mischief  in  a  mercantile  community.  Mr^  Hardy 
was  made  the  instrument  by  which  Mr.  Megaw  was  also  misled 
as  to  the  bankrupt's  solvency.  Having  made  that  statement  of  his 
affairs  to  Mr.  Hardy,  Mr.  Megaw  was  referred  to  him,  and  thus 
was  induced  to  place  confidence  in  the  bankrupt  still,  though  his 
name  had  been  mentioned  in  connection  with  the  failure  of  the 
Messrs.  Rogerson.  There  was  then  a  wilful,  deliberate  misrepresen- 
tation by  the  bankrupt,>  in  order  to  get  credit  when  he  was  in  a 
state  of  insolvency,  and  wh^n  he  knew  that  he  could  not  pay  his 
debts  from  the  proceeds  of  the  contracts.  That  was  not  honest 
trading.  Under  the  Bankruptcy  Code,  the  fact  of  a  man  having 
engaged  in  gambling  prevents  him   passing,  or  getting  a  certifi* 

VOL.11.  10 


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Judgment* 


74  CHANCERY  REPORTS. 

I860.        cate;   but  it  is  worse  than  gambling  for  a  man  to  go  into  the 

. mercantile  world,  and  raise   money  which  he  cannot   hope  to  be 

In  re 
LOCKHART.    ^^^^  ^0  paj,  and  to  raise  it  altogether  at  other  people's  risk,  having 

nothing  himself  to  lose.  Therefore,  on  the  ground  of  reckless,  pro- 
fligate and  dishonest  trading,  and  on  the  ground  of  wilful  misrepre- 
sentation, I  am  prepared  to  deal  with  this  case.  I4  he  to  pass  the 
final  examination  ?  Mr.  Keman  has  said^  that  there  is  only  one 
case  in  which  I  refused  to  pass  the  final  examination,  and  that  that 
is  a  pase  where  there  was  an  absolute  forgery  committed,  in  the 
eye  of  the  law — where  fictitious  names  were  put  on  bilb  brought 
into  the  market.  My  jurisdiction  to  adjourn  the  final  examination 
sine  die  was  questioned ;  but  no  appeal  was  taken  to  my  decision. 
I  refused  to  pass  the  final  examination  in  that  case ;  I  do  equally 
in  this  case.  I  feel  that  I  should  not  be  justified,  holding  the  place 
I  do,  in  giving  the  bankrupt  a  certificate,  as  I  do  not  think,  looking 
at  the  bankrupt's  past  conduct  and  transactions,  that  he  is  entitled 
to  the  certificate  of  the  Court  for  his  future  dealings.  I  regret  to 
have  to  adopt  that  course ;  for  I  should  be  better  pleased  if  I  could 
deal  leniently  with  the  case ;  but  my  duty  to  the  public  compels  me 
to  adjourn  the  bankrupt's  examination  sine  die. 

Protection  refused. 


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CHANCERY  REPORTS.  75 


1860. 
RolU. 


IIOMAN  V.  SKELTON. 
(In  the  Rolls.) 


Mau 

No 


'off.  13. 


The  cause  petition  in  this  matter  was  filed  for  the  specific  perform-  In  1827,  a  les- 
sor, as  to 

ance  of  a  covenant  for  renewal,  contained  in  a  lease  of  the  20th  of  whom  it  was 

dtspiited  who* 

October  1827.     The  facts  of  the  case,  which  are  very  fully  stated  t^er  she   was 

in  the  judgment,  were  shortly  as  follow  : —  ^^J  lifef'^'or 

Daniel  M*Neale,  being  seised  for  lives  renewable  for  ever  of  the  ^^^^f^j 

lands  of  Proleek  (a  part  of  which  called  Rosabella  Proleek  was  in-  hves  renewable 
^     ^  for  ever,  made 

duded  in  the  lease  of  the  20th  of  October  1827),  made  his  will  on  a  lease  for  her 

own  life,  with 
the  22nd  of  April  1822,  whereby  he  devised  all  his  freehold  pro-  a  covenant 

that   if  she 
perty  in  the  county  of  Louth  to  trustees,  on  trust  to  permit  his  should  be  en- 

,    .  ,  abled,  either 

daughter  Rosabella,  who  was  his  heiress-at-law,  to  receive  the  rents  separately  or 

-       ^  ,  .  ,  1  .         . ,    ,        ,  in  conjunction 

and  profits  for  such  term,  time  and  space  as  his  said  daughter   with  any  other 

should  remain  unmarried,  or  marry  with  the  consent  of  both  his  ^j^^  to'^e^t 

trustees  ;  but  in  case  his  said  daughter  Rosabella  should  not  marry"  mUes^^or  ^ 

with  consent  of  one  or  both  of  his  said  trustees,  then  she  was  to  receive  Jj'^K®^  ^JJ^ 

tnan  was  there- 
only  an  annuity  of  £60  for  her  life,  and  the  residue  of  the  property  V  G*""**?^* 

Sue  wouiu,  at 

was  to  be  vested  in  Government  stock  for  the  benefit  of  her  issue  ;  the  request  and 

costs  of  the 
lessee,  execute 
*  all  such  further  act  or  acts,  ^.,  for  the  purpose  of  granting  the  premises  to  him,  for 

any  term  not  exceeding  three  lives,  with  covenant  for  perpetual  renewal,  on  payment 
of  a  peppercorn  fine  on  the  fall  of  each  life,  at  the  rent  thereby  reserved,  &c.,  and 
the  lessee  covenanted  for  himself,  his  heirs  and  assigns,  with  the  lessor  to  accept 
such  grant.  It  was  decided  by  the  Court  of  Appeal  (7  Ir.  Ch.  Rep.  388)  that  the 
lessor  was  tenant  in  quasi  tail. 

Semble. — The  covenant  was  a  personal  covenant,  binding  on  the  lessor  during 
her  life,  and  did  not  descend  with  the  land. 

No  claim  was  made  on  foot  of  the  covenant  during  the  lifetime  of  the  lessor, 
who  died  in  1854.  Judgments  had  been  obtained  by  the  petitioners  for  the  same 
debt  against  the  lessee  and  R.,  who  was  Entitled  in  remainder  to  the  reversion,  and 
who  niterwards  became  entitled  to  the  lessee's  interest.  After  the  lessor's  death, 
a  petition  was  filed  by  creditors  of  R.,  in  the  Incumbered  Estates  Court,  for  sale 
of^he  reversion,  on  the  ground  that  the  lessor  was  only  tenant  for  life,  or,  if  she  were 
tenant  in  ^uast  tail,  that  she  had  not  barred  the  entail.  The  petitioners  were  made 
parties  in  that  matter  as  judgment  creditors  of  R. ;  and  after  it  was  dismissed  by 
the  Court  of  Appeal,  they  had,  in  other  proceedings  in  the  Landed  Estates  Court, 
admitted  the  right  of  the  respondents,  who  were  devisees  of  the  lessor,  and  had 
gone  into  possession  of  the  lands. — Heid^  that  the  right  to  a  specific  performance 
of  the  covenant  had  been  abandoned,  and  was  barred  by  laches  and  acquiescence. 

A  judgment  creditor  of  a  tenant  may  maintain  a  suit  for  a  renewal. 


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1860. 
RoUt, 


Statement 


and  in  case  of  do  issue  he  bequeathed  such  residue  to  his  right  heirs ; 
and  in  case  of  his  daughter  dying  unmarried  or  without  lawful 
issue,  he  devised  Proleek  to  his  nephew,  James  Wolfe  M*Neale, 
for  life,  remainder  to  Donald  M^Neale,  fourth  son  of  J.  W.  M'Neale, 
his  heirs  and  assigns,  for  ever. 

The  testator  died  in  1825,  whereupon  hb  daughter  Rosabella 
entered  into  possession  of  the  lands  of  Proleek.  Donald  M'Neale 
died  in  1829)  intestate,  and  leaving  his  eldest  brother,  Malcolm 
M'Neale,  his  heir-at-law,  who  died  in  1845,  having  devised  his 
remainder  in  Proleek  to  his  brother  Robert  M'Neale. 

On  the  20th  of  October  1827,  Rosabella  M'Neale  demised  the 
lands  of  Rosabella  Proleek,  containing  30a.  Ir.  20p.,  to  James 
Forde,  his  heirs  and  assigns,  in  trust  for  J.  W.  M'Neale,  for  the 
life  of  Rosabella  M^Neale,  at  the  rent  of  £67*  3s.  Id. ;  and  Rosabella 
M'Neale  covenanted  that  if  she  should  be  enabled,  either  separately 
or  in  conjunction  with  any  other  person  or  persons,  to  grant  the 
said  premises  for  any  longer  term  than  was  thereby  granted,  she 
should  and  would,  at  the  request  and  proper  costs  of  the  said  James, 
Forde,  his  heirs  and  assigns,  make,  do  and  execute  all  such  fur- 
ther and  other  act  and  acts,  &c.,  for  the  purpose  of  granting  and 
releasing  the  said  premises  to  him  or  them,  for  any  term  not  exceed- 
ing a  term  of  three  lives,  with  covenant  for  perpetual  renewal  on 
payment  of  a  peppercorn  as  a  fine  on  the  fall  of  each  life,  at  and 
under  the  yearly  rent  thereby  reserved,  and  other  covenants  in  such 
cases  usual ;  and  James  Forde  covenanted  for  himself  and  his  heirs, 
with  Rosabella  M^Neale,  to  accept  such  grant  and  release,  and  to 
execute  a  counterpart; 

In  Michaelmas  Term  1847,  Samuel  Reid  obtained  a  judgment 
against  James  W.  M'Neale,  and  in  the  same  Term  he  obtained 
another  judgment  against  Robert  M*Neale.  Both  judgments  were 
entered  up  on  a  joint  and  several  bond  and  warrant  of  attorney, 
executed  by  J.  W.  M'Neale  and  R.  M'Neale  for  the  same  debt. 
James  W.  M^Neale  died  in  1853,  having  devised  bis  intere^  in  the 
lease  of  the  20th  of  October  1827  to  Robert  M'Neale,  who  was  also 
his  heir-at-law  ;  and  Rosabella  M'Neale  died  in  1854,  without  hay- 
ing been  married,  and  having  devised  her  interest  to  the  respondents 
William  Skelton  and  Philip  Skelton. 


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CHANCERY  REPORTS. 


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1860. 


Some  creditors  of  Robert  M'Neale  presented  a  petition  in  the 
Incumbered  Estates  Court,  for  the  sale  of  the  interest  devised  to 
Rosabella  M*NeaIe,  alleging  that  she  only  took  a  life  estate  under  ^^^^^ 
the  will  of  Daniel  M'Neale,  or,  if  she  took  an  estate  in  quasi  tail,  skelton. 
that  she  had  not  barred  it.  The  petition  was,  on  the  2l8t  of  April  statment 
1858,  dismissed  by  the  Court  of  Appeal,  who  decided  (a)  that  Rosa- 
bella M'Neale  took  an  estate  in  quasi  tail,  which  had  been  barred 
by  a  renewal  of  1 829.  Anne  M*Neale,  Margaret  M*Neale  and  Maria 
Frances  M'Neale,  who  were  petitioners  in  this  matter,  were  parties 
in  the  proceedings  in  the  Incumbered  Estates  Court  and  Court  of 
Appeal.  A  receiver  had  been  appointed  in  this  Court  over  the 
lands,  pending  the  proceedings  in  the  Incumbered  Estates  Court  by 
George  Crawley,  a  creditor  of  Robert  M*Nealev  After  the  decision 
of  the  Court  of  Appeal,  the  respondents,  on  the  22nd  of  June  1858, 
obtained  an  order  from  Master  Lyle  to  discharge  the  receiver,  and 
(the  tenants  having  refused  to  give  up  possession)  they  brought  an 
ejectment,  recovered  possession  and  let  the  lands.  Some  other  lands, 
the  property  of  Robert  M*Neale,  having  been  sold  in  the  Incumbered 
Estates  Court,  a  question  of  compensation  for  injury  done  to  the 
lands  of  Proleek,  by  the  making  of  a  watercourse  on  the  lands  so 
sold,  arose  between  the  creditors  of  Robert  M'Neale  and  the  respond- 
ents William  Skelton  and  Philip  Skelton;  and,  from  May  1868  to 
April  1859,  certain  proceedings  took  place,  in  the  progress  of  which 
Mr.  £.  Mathews,  purporting  to  act  as  solicitor  for  the  petitioners  as 
creditors  of  Robert  M'Neale,  served  notices  in  which  he  treated  the 
respondents  as  owners  of  the  lands  of  Rosabella  Proleek.  Ultimately, 
by  an  order  of  Judge  Longfield,  of  the  15th  of  April  1859,  £200 
compensation  was  awarded  to  the  respondents.  Those  proceedings 
and  notices  were  relied  on  by  the  respondents  as  an  abandonment 
by  the  petitioners  of  the  right  claimed  in  this  suit.  They  are  set 
out  at  length  in  the  judgment.  On  the  15th  of  February  1859, 
Samuel  Reid  assigned  the  two  judgments  to  the  petitioner  Frederick 
Homan,  in  trust  for  the  petitioners  Anne  M'Neale,  Margaret 
M'Neale  and  Maria  Frances  M*Neale.  In  February  1860,  the 
petition  in  this  matter  was  filed  by  them,  as  judgment  creditors  of 

(«)  Sec  In  re  M*Neale  (7  Ir.  Chan.  Rep.  388). 


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78 


CHANCERY  .REPORTS. 


1860. 
RolU. 

* V ' 

HOMAN 

V. 

SKELTON. 

Statement. 


James  Wolfe  M^Neale,  for  a  specific  performance  of  the  covenant 
contained  in  the  lease  of  the  20th  of  October  1827,  against  William 
Skelton  and  Philip  Skelton,  the  devisees  of  Rosabella  M'Neale, 
Richard  Lucas,  the  assignee  of  Robert  M'Neale,  and  Theobald  Forde, 
the  representative  of  the  lessee  of  the  lease  of  the  20th  of  October  1827. 
The  pnncipal  defences  set  up  by  the  answering  affidavits  of 
the  respondents  William  Skelton  and  Philip  Skelton,  and  those 
to  which  the  arguments  and  judgment  are  dii*ected,  were,  first, 
that  the  petitioners,  8l9  judgment  creditors  of  J.  W.  M^Neale  or 
R.  M*Neale,  could  not  maintain  a  suit  for  the  specific  performance 
of  the  covenant.  Secondly,  that  the  covenant  in  the  lease  of  the 
20th  of  October  1827  was  a  personal  covenant,  intended  to  be 
carried  out,  if  at  all,  during  her  lifetime,  and  was  not  binding 
on  her  heirs  or  the  respondents  her  devisees.  Thirdly,  that  after 
the  order  discharging  the  receiver,  the  petitioners,  and  the  other 
parties  acting  with  them,  elected  not  to  take  any  proceedings  to 
enforce  a  renewal,  and  relinquished  all  claim,  considering  that  the 
lands  were  not  then  worth  more  than  the  rent  of  £67*  3s.  Id.; 
and  that  the  petition  had  been  filed  solely  because  Judge  Xiongfield 
had  awarded  so  large  a  sum  in  respect  of  compensation  for  the 
watercourse,  and  on  a  speculation  that,  if  the  suit  were  successful, 
that  sum  would  form  a  fund  for  the  payment  of  the  petitioners, 
as  creditors  of  Robert  M'Neale.  Fourthly,  laches  and  acquiescence, 
and  the  Statute  of  Limitations.  Fifthly,  waste  by  James  W. 
M^Neale,  in  making  the  watercourse  through  the  lands. 


Argument, 


Mr.  Serjeant  Lawson,  Mr.  Chatterton  and  Mr.  Xeech,  for  the 
petitioners. 

Smith  V.  Shannon  (a)  is  a  conclusive  authority  as  to  the 
right  of  a  judgment  creditor  to  maintain  a  suit  for  renewal. 
As  to  the  construction  of  the  covenant,  the  principle  of  law 
is,  that  when  a  covenant  is  attached  to  the  demise,  it  is  im- 
material whether  the  word  '*  heirs  "^  is  used.  It  runs  with  the 
lands,  and  is  binding  on  the  assignee  of  the  grantor  and  on 
the  lissignee  of   the    grantee :    Spencer's  case  (b).     There   were 

(a)  3  Ir.  Chan.  Bep.  462.  (J,)  1  Sm.  L.  C.  23. 


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CHANCERY  REPORTS.  •  79 

mutual  coyenants  in  the  lease  of  1827.     A  covenant  to  renew         I860. 

RolU. 
runs  with  the  land :  Roe  v.  Hayley  (a)  ;  Hyde  v.  Skinner  (b).   There     ^ v^— ^ 

HOMAN 

was  no  waiver  or  abandonment  of  the  petitioners'  rights,  under  ^^ 

the  covenant,  by  the  proceedings  in  the  Incumbered  Estates  Court  skelton. 
and  Court  of  Appeal ;  for  whatever  part  was  taken  in  these  pro-  Argument, 
ceedings  by  the  petitioners  was  taken  by  them  in  assertion  of  a 
different  right  and  in  a  different  character.  They  were  creditors 
of  Robert  M^Neale,  as  well  as  creditors  of  James  W.  M'Neale* 
The  interests  of  their  two  debtors  happened  to  be  conflicting^ 
but  they  were  not,  therefore,  bound  to  elect  against  which  of 
them  they  would  proceed.  They  had  a  right  to  make  the  estates 
of  both  available  for  the  payment  of  their  demand.  How  then  can 
it  be  said  that,  by  proceeding  to  realise  .a  fund  for  the  payment 
of  the  debts  of  Robert  M^Neale,  they  abandoned  their  right  to 
proceed  against  the  estate  of  James  W.  M'Neale?  The  abandon- 
ment or  waiver  of  a  contract  must  be  clearly  proved,  to  be  a  defence, 
even  in  a  Court  of  Equity.  The  acts  relied  on  must  be  done  with 
the  intention  to  waive  the  contract :  Clarke  v.  Moore  (c). 

The  respondents  did  not  recover  possession  of  the  lands,  under 
the  ejectment,  until  November  1858.  Until  then,  there  was  no 
possession  adverse  to  the  petitioners.  There  was  no  refusal  by 
the  respondents  to  grant  the  renewal;  and  that  distinguishes  this 
case  from  Walker  v.  Jeffreys  {d)y  Beaphy  v.  HiU  {e\  Morgan  v. 
Gurly  (f)^  and  Southcome  v.  Tke  Bishop  of  Exeter  {g\  Waste,  or  a 
breach  of  covenant  by  the  tenant,  is  not  a  valid  defence  to  a  suit  for 
renewal :  Trant  v.  Dwyer  (A) ;  Brown  v.  The  Marquis  of  Sligo  (t ). 

Mr.  Brewster^  Mr.  Sullivan  and  Mr.  M*Blain^  for  the  re- 
spondents. 

The  covenant  in  the  lease  of  the  20th  of  October  1827  was 

(a)  12  Eaut.  464.  (b)  2  P.  Wma.  136. 

(c)  IJ.  &  L.  123.  (rf)  I  Hare.  347. 

(0  2  Sim.  &  St.  20.  (f)  1  Ir.  Chan.  Bep.  482. 

(g)  6  Hare,  213. 

(A)  1  Dow.,  N.  S.,  125;  S.  C,  2  BU.,  N,  S„  11. 

(0  10  Ir.  Chan.  Rep.  1. 


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CHANCERY  REPORTS. 


1860. 
RolU, 

HOMAN 
V, 

8ILELTON. 

Argument* 


Nov.  12, 
Judgfnent, 


not  binding  on  the  heirs  of  Rosabella  M'Neale.  It  was  binding 
on  her  during  her  life,  and  the  lessee  might,  during  that  time, 
have  compelled  her  to  perform  it;  but  it  conferred  no  obliga- 
tion binding  her  heirs.  No  action  on  it  could  be  maintained  at 
Law  against  them,  and,  a  fortiori^  no  suit  for  specific  performance 
could  be  maintained  in  Equity :  Piatt  on  Covenants,  pp.  448  ahd 
449*  The  covenants  appear  to  have  been  framed  designedly  with 
that  view ;  fof ,  in  the  covenant  by  the  lessee,  his  heirs  are 
bound,  whereas,  in  the  covenant  by  the  lessor,  the  word  "  heirs" 
is  omitted.  It  ih  therefore  a  mere  personal  equity,  attaching  on 
the  conscience  of  the  party,  and  not  descending  with  the  land : 
Sug,  Ven,  Sf  Pur.^  pp.  612,  613;  Kent  v.  Stoney  (a);  Jones  v. 
Kearney  (b.)  The  doctrine  of  laches,  as  established  by  Morgan  v. 
Gurley  (c),  Heaphy  v.  Hill  (rf)j  and  Southcome  v.  The  Bishop  of 
Exeter  (tf),  forcibly  applies  to  this  case.  No  claim  was  made 
during  the  lifetime  of  Rosabella  M^Neale,  from  1827  to  1854;  ' 
and,  after  her  death,  not  only  was  no  claim  made,  but  the  claim 
was  abandoned  and  proceedings  were  taken,  which  amounted  to  a 
disclaimer  of  the  title  of  the  reversioners:  Doe  d.  Phillips  v. 
Rawlings  (f). 


The  Master  of  the  Rolls. 

The  petition  in  this  case  has  been  filed  by  Frederick  Homan,  as 
assignee  of  a  judgment,  entered  on  a  bond  and  warrant  of  attorney, 
as  of  Michaelmas  Term  1847,  against  James  Wolfe  M'Neale,  at  suit 
of  one  Samuel  Keid,  and  also  as  assignee  of  a  judgment,  of  equal 
date,  entered  on  the  same  bond  and  warrant,  against  Robert 
M'Neale,  for  the  specific  performance  of  a  contract  to  execute  a 
lease  for  three  lives,  with  a  covenant  for  perpetual  renewal,  which 
contract  is  contained  in  a  lease  made  by  Rosabella  M^Neale  to 
James  Forde,  and  which  bears  date  the  20th  of  October  1827*  The 
judgments  were  assigned  in  February  1859  by  Samuel  Reid  to 
Frederick  Homan.  Frederick  Homan  was  a  trustee  for  the  other 
petitioners.    James  Forde,  the  lessee  in  the  said  lease,  was  a  trustee 


(<t)  9Ir.  Chan.  Rep.  249. 
(c)  1  Ir.  Chan.  Bep.  482. 
(e)  6  Hare,  213. 


(6)  1  Dr.  &  War.  134. 
(<0  2  Sim.  k  St.  20. 
09  4  C.  B.  200. 


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for  James  Wolfe  M'Neale.     The  facts  of  the  case,  so  far  as  they         I860. 

RoUs, 
appear  to  me  to  be  material,  are  as  follow: — Rosabella  M'Neale,      ^ — -v — ' 

HOMAN 

being  seised  of  the  lands  of  Proleek,  in  the  county  of  Louth,  by  ^^ 

indenture,  dated  the  20th  of  October  1827,  and  made  between  the  skelton. 
said  Rosabella  M'Neale,  of  the  one  part,  and  James  Forde  (since  judgment. 
deceased),  of  the  other  part,  demised  to  the  said  James  Forde,  and 
to  his  heirs,  part  of  the  townland  of  Prqleek,  in  the  county  of  Louth, 
containing  30a.  Ir.  23p.,  plantation  measure,  to  hold  unto  the  said 
James  Forde,  his  heirs  and  assigns,  from  the  1st  day  of  November 
1826,  for  the  life  of  the  said  Rosabella  M^Neale,  at  the  yearly  rent 
of  £67.  ds.  Id.  sterling,  payable  half-yearly,  on  the  days  therein 
mentioned ;  and  the  said  Rosabella  M'Neale  did  thereby  covenant, 
proihise  and  agree,  to  and  with  the  said  James  Forde,  his  heirs  and 
assigns,  that  if  she,  the  said  Rosabella  M^Neale,  should  be  enabled, 
either  separately,  or  in  conjunction  with  any  other  person  or  per- 
sons, to  grant  the  said  premises  for  any  longer  term  than  was 
thereby  granted,  she  the  said  Rosabella  M^Neale  should  and  would, 
at  the  request  and  proper  costs  of  the  said  James  Forde,  his  heirs 
or  assigns,  make,  do  and  execute  all  such  further  and  other  act  and 
acts,  deed  and  deeds,  for  the  purpose  of  granting  and  releasing  the 
said  premises  to  him  or  them,  for  any  term  not  exceeding  a  term  of 
three  lives,  with  covenant  for  perpetual  renewal,  on  payment  of  a 
peppercorn  as  a  fine  on  the  fall  of  each  life,  at  and  under  the 
yearly  rent  thereby  reserved,  and  other  covenants  in  such  cases 
usual ;  and  the  said  James  Forde  did  thereby  for  himself,  his  heirs 
and  assigns,  covenant  and  agree,  to  and  with  the  said  Rosabella 
M'Neale,  to  accept  such  grant  and  release,  and  to  execute  a 
counterpart  thereof,  as  aforesaid.  This  b  the  covenant  or  contract 
the  specific  performance  of  which  is*  sought  in  this  suit.  It  will  be 
observed  that  the  rent  reserved  by  the  said  lease  was  upwards  of  £2 
an  acre,  which  will  account  for  the  delay  of  thirty-three  years  in 
seeking  to  enforce  the  specific  performance  of  the  ■  contract,  and 
which  contract  wx>uld  never  have  been  sought  to  be  enforced,  except 
for  the  order  of  Judge  Longfield,  of  April  1859,  to  which  I  shall 
hereafter  advert. 

It  appears,  from  the  decision  of  the  Court  of  Appeal,  in  the  case 
VOL.  11.  11 


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1860. 
RoiU, 

HOMAN 

V, 

8KELTON. 

Judgment. 


of  In  re  M^Neale  (a),  that,  at  the  time  of  the  execution  of  the  lease 
of  1827,  Rosabella  M'Neale  was  seised  of  an  estate  in  quasi  tail, 
under  a  head-lease  for  lives  renewable  for  ever,  and  that  such  estate 
in  quasi  tail  was  barred  bj  a  renewal  of  the  head-lease  in  1829; 
and  Rosabella  M'Neale,  therefore,  had  th6  power,  when  she  made 
the  lease  of  1827,  of  barring  such  quasi  estate  tail,  and  making  a 
sub-lease  for  lives  renewable  for  ever. 

Rosabella  M^Neale,  being  seised  m  qttasi  fee  of  the  immediate 
reversion  of  the  lease  of  the  20th  of  October  1827,  made  her  will, 
in  writing,  bearing  date  the  28th  day  of  October  1853,  and  thereby, 
after  devising  certain  other  lands  situate  in  the  county  of  Louth,  she 
devised  all  the  rest,  residue  and  remainder  of  her  real  and  personal 
estates,  situate  in  the  county  of  Louth,  to  the  respondents  William 
Skelton  and  Philip  Skelton,  their  heirs  and  assigns ;  and  the  said 
Rosabella  M^Neale  died  in  the  year  1854,  without  having  altered  or 
revoked  her  said  will. 

The  lease  of  the  20th  day  of  October  1827  was  made  to  the  said 
James  Forde,  in  trust  for  James  Wolfe  M*Neale,  since  deceased. 
James  Wolfe  M^Neale  being,  along  with  his  son  Robert  M'Neale, 
indebted  to  Samuel  Reid  in  the  sum  of  £2510,  they,  iri  order  to 
secure  the  repayment  thereof,  executed  their  joint  and  several  bond 
to  Samuel  Reid,  bearing  date  the  10th  day  of  November  1847,  with 
warrant  of  attorney  for  confessing  judgment  thereon,  in  the  penal 
sum  of  £5020,  upon  which  bond  the  said  Samuel  Reid,  on  the^  20th 
day  of  December  1847,  entered  a  several  judgment  in  the  Court  of 
Queen's  Bench,  against  the  said  James  Wolfe  M'Neale,  for  the  said 
penal  sum,  and,  ob  the  same  day,  entered  a  several  judgment  in  said 
Court  against  the  said  Robert  M^Neale,  for  the  said  penal  sum. 

By  indenture,  bearing  date  the  15th  of  February  1859  (at  which 
time  the  respondents  William  and  Philip  Skelton  were  in  possession 
of  the  lands  demised  by  said  lease,  adversely  to  any  claim  of  Samuel 
Reid,  or  of  the  petitioners),  and  which  indenture  was  made  between 
tl)e  said  Samuel  Reid,  of  the  first  part,  the  petitioners  Anne  M^Neale, 
Margaret  M^Neale  and  Maria  Frances  M^Neale,  of  the  second  part, 
and  the4>etitioner  Frederick  Homan,  of  the  third  part,  the  said  Samuel 

(a)  7  Ir.  Chan.  Rep.  388. 


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1860. 
RolU. 


HOMAN 

V. 

8KELT0N. 


Reid  assigned  to  the  petitioner  Frederick  Homan  the  said  judgment 
obtained  against  the  said  James  W.  M*Neale,  and  likewise  assigned 
to  him  the  said  judgment  obtained  against  the  said  Robert  M'Neale, 
and  memorials  of  the  said  assignments  were,  on  the  14th  day  of 
March  1859,  duly  enrolled.  The  assignments  were  in  trust  for  the  Judgment, 
petitioners  Anne  M'Neale,  Margaret  M*Neale  and  Maria  Frances 
M^Neale  ;  and  the  assignn^nts  were  made  for  the  purpose  of  insti- 
tuting this  suit,  as  I  shall  just  now  explain.  James  Wolfe  M'Neale 
died  in  June  1853 ;  and  the  petitioners  allege  that  his  estate,  under 
the  lease  of  1827,  and  the  contract  therein  contained,  was  bound  bj 
the  judgment  against  him. 

James  Wolfe  M^Neale  made  his  will^  dated  the  29th  of  January 
1853,  and  thereby  devised  all  his  estate  and  interest  in  the  [said* 
lands  to  his  son,  the  said  Robert  M*Neale. 

Rosabella  M'Neale  was  then  living,  and  Robert  M'Neale,  who 
was  heir-at-law,  as  well  as  devisee,  of  James  Wolfe  M'Neale, 
became  entitled  to  the  lands  for  the  life  of  Rosabella,  and  to  the 
benefit  of  the  contract  contained  in  the  said  lease  of  October  1827. 
The  estate  and  interest  in  the  said  lands,  of  which  the  said  Robert 
M'Neale  became  so  seised,  was,  of  course,  bound  by  the  judgment 
against  him,  and  was  alsd  bound  by  the  judgment  on  the  same  bond 
against  his  father.  The  petitioners  seek  to  sustain  this  suit  as 
assignees  of  the  judgment  against  J.  W.  M'Neale,  being  apprehen- 
sive that  their  having  been  parties  to  the  proceedings,  to  which  I 
shall  just  now  refer,  in  the  Landed  Estates  Court,  as  creditors  of 
Robert  M^Neale,  might  affect  their  right  to  maintain  this  suit. 

Robert  M^Neale  was  discharged  as  an  insolvent  debtor,  in  the  * 
year  1854,  and  all  the  estate  and  interest  of  the  said  Robert 
M'Neale,  in  the  said  lands,  became  vested  in  Richard  Lucas,  who 
was  appointed  assignee  by  the  Insolvent  Court.  James  Forde  died 
in  the  year  1837,  and  his  heir-at-law  is  a  respondent.  Some  mat- 
ters are  "put  in  issue  by  an  amendment  of  the  petition,  which  do 
not  appear  to  me  to  be  material,  from  the  view  I  take  of  the  case. 

Several  grounds  of  defence  have  been  set  up  in  the  affidavit  by 
way  of  answer,  filed  by  the  respondents  William  Skelton  and  Philip 
Skelton,  the  devisees  of  the  said  Rosabella  M'Neale.     One,  at  least, 


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CHANCERY  REPORTS. 


1860. 
RoUs. 


Judgwient* 


of  those  grounds  of  defence  I  consider  to  be  sustainable,  and  I  shall 
refer  to  the  facts  on  which  that  defence  rests. 

Rosabella  M'Neale  claimed  to  be  entitled  to  the  lands  demised  bj 
her  by  the  lease  of  the  20th  of  October  1827,  under  the  will  of  Daniel 
M<Neale,  dated  the  22nd  of  April  1822.  That  will  is  set  out  in 
the  report  of  In  re  IPNealcy  reported  7  /r.  Chan.  JRep^^  p.  389* 
Daniel  M'Neale,  the  testator,  was  ej^titled  to  the  said  lands, 
under  a  head-lease  for  lives  renewable  for  ever.  A  question  arose 
as  to  whether  Rosabella  M^Neale  was  entitled  to  said  lands  under 
said  will,  for  her  life,  or  in  quasi  tail.  There  was  a  devise. over  in 
said  will,  in  the  event,  which  took  place,  of  Rosabella  M'Neale 
dying  unmarried,  or  without  issue,  to  the  said  James  Wolfe  M^Neale, 
for  life,  with  remainder  to  Donald  M'Neale,  fourth  son  of  James 
Wolfe  M^Neale,  his  heirs  and  assigns.  Donald  M'Neale  having 
died  without  issue,  Malcolm  M^Neale,  his  eldest  brother,  became 
entitled  to  whatever  estate  or  interest  Donald  M'Neale  had,  as  his 
heir-at-law.  Malcolm  M'Neale  died  in  1845,  and  devised  all  his 
estate  and  property  to  the  said  Robert  M^Neale.  James  Wolfe 
M'Neale  having  died  in  1853,  it  became  the  interest  of  the  creditors 
of  Robert  M^Neale  to  contend  that  Rosabella  M^Neale  was  only 
entitled  to  a  life  estate,  under  the  will  of  Daniel  M^Neale;  and 
some  of  those  creditors  having  filed  the  petition  in  the  Incumbered 
Estates  Court,  set  forth  in  the  answering  affidavit,  an  absolute  order 
for  a  sale  of  the  part  of  the  lands  of  Proleek,  demised  by  the  lease 
of  the  20th  of  October  1827,  was  made,  the  creditors  not  claiming 
that  the  lease  should  be  sold,  but  insisting  that  it  had  determined,  on 
the  ground  that  Rosabella  M^Neale  was  only  tenant  for  life,  and  that 
the  said  lease,  and  the  contract  sought  by  this  petition  to  be  enforced, 
had  determined  by  her  death,  and  that  Robert  M'Neale  was  entitled 
to  the  lands,  discharged  of  said  lease  and  contract,  as  devisee  of  the 
heir-at-law  of  the.  remainderman  Donald,  to  whom  the  devise  was 
made  by  the  will  of  1822.  This  case  was,  of  course,  wholly  incon- 
sistent with  the  claim  now  made  by  the  petitioners,  so  far  as  they 
are  judgment  creditors  of  Robert  M'Neale ;  the  present  claim  being, 
that  they  are  entitled  to  have  a  specific  performance  of  the  con- 
tract in  said  lease,  entered  into  by  Rosabella  M^Neale ;  and  their 


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case  in  the  Landed  Estates  Court  being,  that  the  lease  and  the  eon- 
tract  were  at  an  end  by  her  death. 

The  respondents  William  Skelton  and  Philip  Skelton^  who  in- 
sisted, in  the  Landed  Eata1;^s  Court,  that  Rosabella  was  tenant  in 
quasi  tail,  and  not  tenant  for  life,  and  that  she  had  barred  the  quasi 
estate  tail  in  1829,  and  that  they  were  entitled,  under  his  will, 
obtained  a  ruling  from  Judge  Longfield,  dated  the  13th  of  Novem- 
ber 1857,  whereby  he  ordered  that  the  order  for  the  sale  should  be 
discharged,  and  that  the  petition,  as  to  the  lands  called  '*  Rosabella 
Proleek,"  which  were  the  lands  demised  by  the  lease  of  1827,  and 
also  as  to  certain  other  lands,  should  be  dismissed.  That  decision 
was  affirmed  by  the  Full  Court,  and  ultimately  by  the  Lord  Chan- 
cellor and  Lord  Justice  of  Appeal,  who  decided  that  Rosabella 
M*Neale  was  tenant  in  quasi  tail,  and  that  she  had  barred  the 
entail ;  and  that  the  said  William  Skelton  and  Philip  Skelton,  two 
of  the  respondents  in  this  matter,  were  entitled  to  said  lands,  under 
her  will.  The  order  of  the  Court  of  Appeal  was  made  on  the 
21st  of  April  1858,  and  the  case  is  reported,  as  I  have  stated,  in 
the  7  Ir.  Chan.  Rep.  The  present  petitioners,  Anne  M'Neale, 
Margaret  M^Neale  and  Maria  Frances  M'Neale,  were  parties  to  the 
said  appeal,  and  bound  thereby.  In  what  right  they  were  parties 
I  do  not  know ;  but  the  ingenioua  plan  of  obtaining  assignments  of 
the  two  judgments  in  February  1859,  after  the  decision  of  the  Court 
of  Appeal,  was  to  endeavour,  by  suing  in  a  new  right,  to  avoid  the 
effect  of  their  proceedings  in  the  Incumbered  Estates  Court  and 
Court  of  Appeal.  Now,  of  course,  it  was  open  to  the  present  peti- 
tioners, and  to  the  other  creditors  of  Robert  M^Neale,  to  have 
applied  to  the  Landed  Estates  Court,  to  sell  the  estate  and  interest 
of  Robert  M*Neale,  under  the  lease  of  1827,  and  the  covenant 
therein  contained,  after  the  title  of  Rosabella  M'Neale  was  estab- 
lished by  the  decision  of  the  Court  of  Appeal ;  but  I  presume  that 
they  thought  it  then  unadvisable  to  do  so,  having  regard  to  the 
lease  having  demised  only  30a.  Ir.  23p.,  and  the  rent  reserved  being 
£67.  3s.  Id. 

George  Crawley,  one  of  the  petitioners  in  the  Incumbered  Estates 
Court,  had  filed  his  cause  petition  in  the  Court  of  Chancery,  on  or 


I860. 
RoUs. 

ROMAN 

V. 

SKELTON. 

Judgment. 


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1860.        about   the    12th  of  January  1857,  against   Robert  M'Neale   and 
RoUm. 
> , '     Richard  Lucas,  his  assignee  under  the  Insolvent  Act,  for  the  pur- 
pose of  raising,  out  of  the  estate  and  interest  in  said  lands,  sought 
8KELTON.     to  be  sold  in  the  Incumbered  Estates  Court,  the  amount  of  a  certain 
Judgmeru,      judgment  debt  due  by  the  said  Robert  M'Neale ;  and,  on  the  17th 
of  August  1857,  one  Robert  Fagan  was  appointed  receiver  over  the 
said  estate  and   interest,  the  property  of  the  respondents  in  this 
matter,  William  and  Philip  Skelton,  who  had  not  been  made  parties 
to  such  proceedings.     The  said  Wiliam  Skelton  and  Philip  Skelton 
having  discovered   such  proceedings,  they  moved   before    Master 
Lyle  to  discharge  the  receiver.    Master  Lyle  made  an  order  on  the 
said  motion,  on  the  22nd  of  June  1858,  and  thereby  ordered  that  the 
receiver  should  be  discharged,  and  that  he  should  pay  to  William  and 
Philip  Skelton  the  rents  which  he  had  received  out  of  the  said  lands, 
and  he  ordered  the  petitioners  in  the  said  matter  to  pay  the  costs  of 
the  motion.      The  respondents  William  and  Philip  Skelton  were 
unable,  notwithstanding  the  said  order,  to  obtain  possession  of  the 
said  lands,  and  were  obliged  to  bring  ejectments  in  the  Superior 
Courts  against  the  occupying  tenants,  and  were  put  to  large  costs 
and  expense,  which  have  never  been  repaid.      The  said  respondents 
William  and  Philip  Skelton  having,  at  last,  got  possession,  and  no 
claim  having  been  put  forward  for  a  performance  of  the  covenant  in 
the  lease  of  1827,  they  let  the  lands  to  one  Launcelot  Coulter,  at  the 
rent  of  £75,  for  one  year  from  the  1st  of  November  1858.     The 
title  of  the  said   William  and  Philip  Skelton  was  thus  distinctly 
adverse  to  the  claim  of  any  persons  claiming  under  the  covenant  in 
the  lease  of  October  1827.    The  said  William  and  Philip  Skelton, 
.  on  the  1st  of  June  18599  caused  advertisements  to  be  inserted  in 
the  *  public  newspapers,  and  ciiused  hand-bills  to  be  posted,  for  a 
letting  of  the  said  lands,  from  the  1st  of  November  1859,  and  which 
advertisements  were  inserted  and  hand-bills  posted  before  the  letter 
of  the  11th  of  June  1859,  to  which  I  shall  just  now  advert.    It  is 
difficult  to  understand  on  what  principle,  on  the  facts  I  have  now 
stated,  Robert  M^Neale's  creditors,  including  the  petitioners,  wholly 
disavowing,  in  the  Incumbered  Estates  Court  and  before  the  Court 
of  Appeal,  the  title  of  RosabeUa  M^Neale  to  make  the  lease  of  1827, 


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for  a  longer  period  than  her  own  life,  and  wholly  disavowing  the         1860. 
title  of  the  landlords  and  reversioners,  the  present  respondents  Wil- 


liam and  Philip  Skelton,  and  allowing  the  receiver  to  be  discharged 
hj  Master  Lyle's  order,  and  an  ejectment  to  be  brought,  and  posses- 
sion to  be  taken  thereunder,  prior  to  the  1st  of  November  1858,  and  Judgment* 
allowing  a  lease  to  be  made  by  the  said  William  and  Philip  Skelton, 
that  those  creditors  should  now  allege  that  the  right  to  enforce  perform- 
ance of  the  contract  subsists.  In  fact  there  was  no  intention  to  seek  a 
renewal;  all  notion  of  the  kind  was  abandoned,  until  some  circum- 
stances took  place  in  the  Incumbered  Estates  Court,  which  led  to 
this  petition,  which  I  shall  now  state. 

Certain  other  lands,  the  property  of  Robert  M^Neale,  were  sold  in 
the  Incumbered  Estates  Court,  and  a  sum  of  £1008.  10s.  4d.,  part  of  - 
the  proceeds  of  such  sale,  was  retained  by  said  Court,  as  and  for  the 
value  of  the  mill-race  or  watercourse  constructed  through  the  lands 
pf  Proleek,  for  the  purpose  of  indemnifying  and  compensating  the 
owners  of  said  lands  for  the  damages  occasioned  thereto  by  reason  of 
the  said  watercourse ;  and  the  said  respondents  William  and  Philip 
Skelton,  having  been  declared  the  owners  of  that  part  of  said  lands 
of  Proleek  called  Rosabella's  Proleek,  which  are  the  subject  of  this 
suit,  and  which  were  demised  by  the  lease  of  October  1827,  they 
thereupon  became  entitled  to  a  proportional  part  of  the  said  sum,  in 
respect  to  that  portion  of  the  said  mill-race  which  runs  through 
said  part  of  the  lands  called  Rosabella's  Proleek.  Edward  Mathews, 
as  solicitor  for  the   petitioners   who   claimed  in  the   Incumbered  ^ 

Estates  Court  as  creditors  of  Robert  M'Neale,  and  who  is  solicitor 
for  the  petitioners  in  this  suit,  caused  the  solicitor  of  the  said  re- 
spondents William  and  Philip  Skelton  to  be  served  with  a  notice, 
bearing  date  the  20th  of  May  1858,  of  an  application  to  be  made  to 
Judge  Longfield,  for  an  order  directing  that  John  Neville,  Esq., 
C.  £.  (who  made  the  valuation  of  the  watercourse  in  respect  of  which 
the  sum  of  £1008.  2s.  6d.  was  set  apart,  out  of  the  moneys  produced 
by  the  sales  in  the  said  matter,  as  the  value  of  the  said  watercourse, 
and  which  had  been  vested  in  Government  stock,  and  then  stood  to 
the  credit  of  the  said  matters),  should  be  at  liberty  to  apportion  the 
said  amount  (the  value  of  the  said  watercourse),  as  between  the 


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1860.        portion  of  the  lands  of  Proleek  called  Rosabella  M'Neale's  Proleek, 
Ro  8.        through  which  the  said  watercourse  ran  (t.  e.,  the  part  demised  by 
HOMAN       ^^^  j^^^  ^^  October  1827),  and  the  other  parts  of  the  lands  of  Pro- 
SKELTON.     leek  through  which  it  also  ran,  and  to  report  his  opinion,  as  to  the 
said  apportionment,  to  Judge  Longfield ;  and  that  a  further  appli- 
cation would  be  made  to  the  said  Judge,  that  the  amount  of  such 
apportionment,  in  respect  of  Rosabella  M'Neale's  Proleek,  should  be 
paid  to  the  said  respondents  William  and  Philip   Skelton,  who  had 
been  declared  entitled  to  the  said  ,  Rosabella   M'Neale's  Proleek. 
Now  this  notice,  served  by  £.  Mathews,  then  and  now  solicitor  for 
the  petitioners,  distinctly  recognised  the  right  of  the   respondents 
William  and  Philip  Skelton  to  the  possession  of  the  lands.    The  , 
said   notice  was   afterwards  withdrawn,  and  a  further   notice  of 
motion  was  served  by  the  said  Edward  Mathews,  on  the  8th  of 
December  1868  (t. «.,  after  Master  Lyle  had  discharged  the  receiver, 
and  after  William  and  Philip  Skelton  had  obtained  possession  under 
the  ejectment,   and  let  the    lands),  on    the   solicitor  of  the   said 
respondents  William  and   Philip  Skelton,  for  an  order  that  John 
Neville,  Esq.,  C.  E.  (who  made  the  valuation  of  the  watercourse,  in 
respect  of  which  the  sum  of  £1008.  10s.  4d.  was  set  apart,  out  of 
the  moneys  produced  by  the  sale  in  the  matter  of  the  said  petition, 
as  the  value  of  the  said  watercourse,  and  which  said  sum  had  been 
invested  in  the  purchase  of  £1008.  2s.  6d.  consols,  and  then  stood  to 
the  credit  of  the  said  matter),  should  be  at  liberty  to  proceed  to 
apportion  the  said  amount,  as  between  the  portion  of  the  lands  of 
Proleek  called  Rosabella  M'Neale*s   Proleek,  through  which  the 
said  watercourse  ran,  and  the  other  parts  of  the  said  lands  of  Pro- 
leek, through  which  it  also  ran,  and  to  report  his  opinion,  as  to  the 
said  apportionment,  to  Judge  Longfield ;  iand  that  further  applica- 
tion would  be  made  to  the  said  Judge,  that  the  amount  of  such 
apportionment,  in  respect  of  Rosabella  M*Neale's  Proleek  (t.  «.,  the 
portion  demised  by  the  lease  of  October  1827),  should  be  paid  to 
\he  said  respondents  William  and  Philip  Skelton,  who   had  been 
declared  entitled  to  the  said  Rosabella  M'Neale's  Proleek.     That 
notice  of  Mr.  Edward  Mathews,  then  and  now  solicitor  for  the 
petitioners,  again  recognised  the  right  of  the  respondents  to  the 


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landa,  unaffected  bj  any  contract.    An  order  on  the  said  last-men-         1660. 

Rolls, 
tioned  notice  was  made  by  Judge  Longfield,  on  the  Idth  of  Decern-     ^^.^ — 


HOMAH 

ber  1858,  whereby  it  was  ordered  that  Mr.  John  Neville,  C.  E.,  ^ 

and  any  other  sarreyor  the  said  respondents  William  and  Philip  skslton. 
Skelton  might  nominate,  should  be  appointed  to  determine  the  Judgmmu. 
value  of  the  watercourse  passing  through  Rosabella  M'Neale's  Pro- 
leek  (t.  «.,  the  lands  in  the  lease  of  October  1827),  without  refer- 
ence to  the  sum  set  apart,  and  that  the  rest  of  the  motion  should 
stand  over.  The  said  WiUiimoi  and  Philip  Skelton,  pursuant  to  the 
said  order,  appointed  Christopher  Mulvany,  Esq.,  C.  E.,  as  their 
surveyor;  and  the  said  John  Neville  and  Christopher  MulviCtoy 
did  not  agree  as  to  their  estimate  of  the  value  of  the  said  water- 
course passing  through  Rosabella  M'Neale's  Proleek  (the  property 
of  the  said  respondents  William  and  Philip  Skelton),  inasmuch  as 
the  said  John  Neville  valued  the  same  at  £13.  15s.  only,  whereas 
the  said  Christopher  Mulvany  considered  that  the  said  respondents 
were  entitled  to  the  sum  of  £200  sterling,  or  thereabouts,  in  respect 
of  the  said  value. 

The  said  Edward  Mathews  caused  a  further  notice  of  motion, 
dated  the  8th  of  March  1 859,  to  be  served  on  the  said  respondents* 
8<dicitor,  for  an  order  that,  out  of  the  funds  in  Bank  to  the  credit  of 
the  said  matter,  the  sum  of  £13.  15s.  lOd.  cash  should  be  paid  to 
the  said  William  and  Philip  Skelton,  in  respect  to  the  value  of  that 
part  of  the  mill-race  which  ran  through  that  portion  of  the  lands  of 
Proleek  called  Rosabella  M'Neale's  Proleek.  So  long  as  Mr.  E. 
Mathews,  as  solicitor  for  the  petitioners,  thought  that  £13.  15s.  Od. 
was  what  would  be  payable  to  William  and  Phillip  Skelton,  he  and 
his  clients  were  determined  not  to  enforce  the  contract,  but  wholly 
abandoned  all  claim  in  respect  of  it ;  but,  on  that  motion  coming  on 
to  be  heard  before  Judge  Longfield,  on  the  15th  of  April  1859,  it 
was  declared  that  the  said  respondents  William  and  Philip  Skelton 
were  entitled  to  compensation  in  respect  of  the  mill-race  which  ran 
through  that  portion  of  the  lands  of  Proleek  known  as  Rosabella 
M'Neale's  Proleek,  at  the  rate  of  twenty- three  years'  purchase, 
upon  the  valuation  of  the  water-power,  and  land  taken  for  the 
watercourse,  as  set  forth  in  Mr.  Mulvany^s  report.  This  order  of 
VOL.  11.  12 


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Judgment. 


Judge  Longfield  quite  altered  the  views  of  Mr.  £.  Mathews  and  his 
clients.  So  long  as  it  was  supposed  that  £67.  3s.  Id.  rent  was  to 
be  paid  for  30a.  Ir.  23p.»  and  that  only  £13.  15s.  Od.  was  to  be  paid 
as  compensation,  it  was  not  contemplated  that  the  covenant  in  the 
lease  of  October  1827  should  be  enforced;  and  the  contract  was  in 
fact  abandoned,  and  the  respondents  William  and  Philip  Skelton 
permitted  to  go  into  possession  ;  but  a  new  light  broke  in  on  Mr.  E. 
Mathews  and  the  petitioners,  when  it  was  discovered  that  about 
£200  was  about  to  be  paid  over  by  Judge  Longfield  to  the  said 
respondents ;  and,  accordingly,  after  said  order  was  pronounced,  the 
said  Edward  Mathews,  without  any  notice  to  the  respondents 
William  and  Philip  Skelton,  applied  to  Judge  Longfield  to  put  a 
stay  upon  said  order,  for  the  purpose  of  enabling  him,  as  solicitor 
for  the  parties  interested  in  the  said  estate  of  Robert  M'Neale,  to 
file  a  cause  petition  against  respondents  for  the  specific  execution  of 
the  contract  contained  in  said  lease  of  the  20th  of  October  1827. 
Judge  Longfield,  in  pursuance  of  such  notice,  put  a  stay  on  the 
payment.  The  first  intimation  made  to  the  said  respondents,  of  any 
intention  to  enforce  said  contract,  was  the  letter  of  said  Edward 
Mathews,  dated  the  1 1th  of  June  1859,  in  the  petition  mentioned, 
t.  «.,  about  twelve  months  after  the  receiver  was  discharged  by  Mas- 
ter Lyle.  Mr.  E.  Mathews,  apprehensive,  I  presume,  of  the  efiect 
of  his  notices,  and  the  acts  of  himself  and  the  petitioners  in  the 
Landed  Estates  Court,  adopted  then  the  ingenious  plan  of  getting 
an  assignment  of  the  two  judgments,  in  February  1860,  from  Mr. 
Reid;  and  Counsel  for  the  petitioners,  feeling  the  difficulty  of 
getting  over  the  question  of  laches  and  abandonment,  seek  to  uphold 
the  petition,  on  the  ground  that  the  petitioners  are  assignees  of  the 
judgment  against  James  Wolfe  M'Neale,  and  are  not  to  be  affected 
by  anything  which  took  place  in  the  Landed  Estates  Court,  where 
they  claimed  as  creditors  of  Robert  M'Neale,  although  the  judgment 
against  James  Wolfe  M'Neale,  and  the  judgment  against  Robert 
M'Neale,  are  for  the  same  debt,  and  on  the  same  bond. 

The  respondents  William  and  Philip  Skelton  state  they  believe 
that,  after  the  said  order  of  Master  Lyle,  of  the  22nd  of  June  1858, 
had  been  made,  discharging  the  receiver  over  the  said  lands,  the 


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said  petitioners,  and  the  other  parties  acting  with  them,  as  aforesaid, 
did  in  fact  elect  and  determine  not  to  take  any  proceedings  to 

ROMAN 

enforce  a  renewal  of  the  said  lease,  pursuant  to  the  said  covenant,  ^^ 

and  did  then  relinquish  and  give  up  all  claim  thereto;  the  said  skelton. 
petitioners  considering  that  the  said  lands  were  not  then  worth  more  judgment, 
than  the  rent  of  £67.  3s.  Id.  per  annum,  reserved  by  the  said  lease. 
That  statement  is,  I  think,  in  accordance  with  the  fact ;  and  they 
state,  by  said  affidavit,  that  they  believe  the  present  petition  has 
been  filed  against  them  solely  and  entirely  because  Judge  Longfield 
awarded  to  them  so  large  a  sum,  in  respect  of  that  part  of  said 
watercourse  running  through  their  lands;  and  they  verily  believe 
that  said  petition  would  never  have  been  filed,  if  the  valuation  of 
the  said  John  Neville,  C.  E.,  had  been  adopted,  instead  of  the  valu- 
ation of  Christopher  Mulvany,  C.  E.;  and  the  affidavit  further  states 
that  this  petition  is  founded  on  the  speculation  that,  if  same  be  suc- 
cessful, and  if  the  said  respondents  William  and  Philip  Skelton  are, 
in  consequence,  compelled  to  execute  a  lease  for  ever  of  said  lands 
to  the  petitioners,  then  the  sum  so  apportioned  to  the  said  respond- 
ents William  and  Philip  Skelton,  by  the  order  of  Judge  Longfield, 
will  not  be  paid  to  them  at  all,  but  same  will  form  a  fund  for  the 
payment  of  the  petitioners,  as  creditors  of  said  Robert  M^Neale ; 
and  the  affidavit  then  submits  that  the  course  of  proceedings  adopted 
throughout  towards  the  said  respondents  by  the  petitioners,  and  the 
parties  in  the  same  interest  with  them,  has  been  unjust,  and  such  as 
ought  to  disentitle  them  to  the  interposition  of  a  Court  of  Ekjuity  in 
their  &vour. 

The  first  question  which  arises  in  this  case  is,  whether  the  peti- 
tions Frederick  Homan,  as  assignee  of  the  judgment  against  James 
Wolfe  M'Neale,  or  as  assignee  of  the  judgment  against  Robert 
M^Neole,  is  entitled  to  maintain  this  suit ;  t.  ^.,  whether  a  judgment 
creditor  of  a  party  with  whom  a  contract  has  been  entered  into  can 
enforce  the  performance  of  the  contract  ?  I  apprehend  that  question 
is  not  open  for  argument  in  this  Court,  having  regard  to  the  deci- 
sion of  Lord  Plunket,  in  Smith  v.  Shannon  (a) ;  and  I  therefore 
offer  no  opinion  upon  it. 

The  second  question  arises  under  these  circumstances  : — The 
(a)  3  Ir.  £q.  Rep.  452. 


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RoUs, 


Judgment. 


respondents  Willimn  and  Phillip  Skelton,  having  obtained  an 
order  from  Master  Ljle,  in  the  former  Chancery  canse  to  which 
I  have  adverted,  dated  the  22nd  of  June  1858,  to  ^Uscharge  the 
receiver,  who  had  been  appointed  over  the  lands  in  question, 
without  notice  to  the  said  respondents,  and  the  tenants  in  posses- 
sion having  refused  to  give  up  the  possession,  notwithstanding 
the  discharge  of  the  receiver,  the  said  respondents  William  and 
Philip  Skelton  brought  an  ejectment,  and  obtained  possession  of 
the  lands,  prior  to  the  1st  of  November  1858 ;  and  they  then  let 
the  said  lands  to  Launcelot  Coulter,  for  one  year  from  the  1st  of 
November  1858,  at  the  rent  of  £75.  William  and  Philip  Skelton 
being  thus  adversely  in  possession,  the  petitioner  Frederick  Homan 
obtained  an  assignment  of  the  judgment  against  James  Wolfe 
M^eale,  and  of  the  judgment  agidnst  Robert  M'Neale,  in  the 
month  of  February  1859-  The  question  is,  whether  the  petitions 
Frederick  Homan,  who  is  trustee  for  the  other  petitioners,  is  at 
fiberty  to  purchase  a  right  to  file  a  cause  petition  in  Equity,  there 
being  no  doubt,  on  the  facts  of  the  case,  that  the  assignments  of  the 
judgments  were  obtained  for  that  purpose?  In  Story*s  Equity 
Jurisprudence,  voL  2,  s.  1040c,  it  is  said: — *' Indeed  it  has  been 
laid  down  as  a  general  rule  that,  where  an  equitable  interest  is 
assigned,  in  order  to  give  the  assignee  a  laeus  standi  injudicio  in 
a  Court  of  Equity,  the  party  assigning  such  right  must  have  some 
substantial  possession,  and  some  capability  of  personal  enjoymenti 
and  not  a  mere  naked  right  to  overset  a  legal  instrument,  or  to 
maintain  a  suit."  This  subject  was  fully  considered  in  the  judgment 
of  Lord  Abinge]^,  in  Prosser  v.  Edmonds  (a). 

In  Fry  on  Specific  Performance,  pp.  55,  56,  where  the  cases  are 
collected,  it  is  stated  that,  '^  Whilst  it  is  clearly  lawful  to  assign  a 
right  at  the  time  undisputed,  and  if,  from  circumstances  afterwards 
discovered,  a  necessity  arises  for  litigation  against  third  parties,  the 
assignee  may  maintain  his  bill  in  Equity,  yet  it  is  as  clearly  against 
public  policy  to  allow  of  the  assignment  of  a  mere  naked  right  to 
file  a  bilL"  Jn  the  present  case,  the  assignments  of  the  judgments 
were  obtained  by  the  petitioners  in  February  1 859,  for  the  purpose 

(a)  lY&.C.,Ex.  Ca«.,481. 


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1860. 

RoOi. 


•f  fiHDg  this  oaose  petition,  the  respondents  William  and  PhiUp 
Skelton  being  then  adversely  in  possession.     I  do  not,  however, 
consider  it  necessary  to  oflfer  an  opinion  on  this  question,  as  I  am       ^^■^^ 
of  opinion,  on  other  grounds  which  I  shall  hereafter  state,  that  this     skblton. 
suit  cannot  be  sustained.  ,     jiiZH^. 

The  next  question  which  arises  is,  whether  this  suit  can  be  sus- 
tained, as  Rosabella  M'Neale  did  not  by  the  covenant  bind  her 
hdrs?  I  do  not  consider  it  necessary  to  decide  that  point,  although 
I  am  of  opinion  that  the  intention  of  the  contract  contained  in  the 
lease  of  the  20th  of  October  1827  was,  tliat  it  should  be  carried  out, 
if  at  all,  by  Rosabella  herself,  and  during  her  lifetime;  a  matter  of 
importance,  in  considering  the  question  of  laches,  to  which  I  shall 
hereafter  advert. 

The  next  question  which  arises  is,  whether  the  petitioners  are 
precluded  by  laches  or  acquiescence,  or  from  the  contract  having 
been  abandoned,  from  sustaming  this  suit  ?  The  petitioners  could 
not,  of  course,  have  acquired  any  right  to  a  specific  performance,  by 
reason  of  the  assignments  of  the  judgments  in  February  1859»  if  the 
right  to  enforce  the  performance  of  the  contract  had  then  been  lost 
by  laches,  or  by  the  abandonment  of  the  contract  by  those  who, 
pre? ions  to  such  assignments,  represented  the  interest  in  the  lease 
of  the  20th  of  October  1827-  It  may  be  doubtful  whether  that 
lease  was  a  lease  for  lives  renewable  for  ever,  such  as  was  contem- 
plated by  the  Tenantry  Act.  It  was  a  lease  by  Rosabella  for  her 
own  life,  withi  a  contract  that,  if  she  should  be  enabled  to  grant  the 
premises  for  any  longer  term  than  was  thereby  granted,  she  the 
said  Rosabella  should  and  would,  at  the  request  and  proper  costs 
of  the  said  James  Forde,  his  heirs  and  assigns,  do  such  further  acts 
as  would  be  necessary  for  the  purpose  of  granting  the  said  premises 
to  him  for  any  term  not  exceeding  the  term  of  three  lives,  with 
corsnant  for  perpetual  renewal,  on  payment  of  a  peppercorn  as  a 
fine  on  the  fall  of  each  life.  But  whether  it  was  a  lease  within  the 
Tenantry  Act  or  not,  I  think  the  contract  cannot  now  be  enforced. 
James  Forde,  the  lessee,  was  ^  trustee  for  James  Wolfe  M^Neale, 
and  the  contract  was  in  efiect  with  James  Wolfe  M^Neale.  Robert 
M'Neale,  who  claimed  the  reversion  derivatively  under  the  limita- 


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Judgment, 


tions  contained  in  the  will  of  Daniel  M*Neale,  and  his  creditors^ 
insisted,  after  the  death  of  James  Wolfe  M*Neale,  that  Rosahella 
M'Neale  had  onlj  a  life  estate  in  the  lands  under  the  said  will,  and 
that  the  said  Robert  M'Neale  became,  on  her  death,  entitled  to  the 
lands ;  and  that  the  said  Rosabella  had  no  power  to  perform  the  said 
contract,  having  been  only  tenant  for  life.  Rosabella  died  in  J'ulj 
1854.  The  above  claim  was  relied  on,  until  the  Court  of  Appeal 
decided,  on  the  21st  of  April  1858,  that  Rosabella  M*Neale  had  a 
quasi  esthte  tail  under  the  will  of  the  said  Daniel  M'Neale.  Surely, 
if  a  tenant  is  to  be  at  liberty  to  allege  that  the  title  of  the  landlord 
has  expired  on  his  death,  and  that  the  tenant  has  thereupon  become 
absolutely  entitled  to  the  lands  in  his  own  right,  assuming  that  such 
denial  of  title  in  the  landlord  does  not  preclude  the  tenant  from 
enforcing  the  contract.  Doe  v.  Rowlings  {a)^  Long  v.  Long{b)t 
it  is  the  duty  of  the  tenant,  if  he  seeks  to  enforce  the  contract  as 
against  the  devisee  of  the  landlord,  to  proceed  without  any  delay, 
after  it  has  been  solemnly  decided  that  the  claim  of  the  tenant  to  the 
lands  is  unfounded.  If  James  Wolfe  M*Neale,  or  Robert  M'Neale, 
had  been  informed  by  notice  that  their  right  to  the  performance  of 
the  contract  was  disputed,  they  or  their  creditors  could  not  have  lain 
by  for  any  such  period  as  has  been  permitted  to  elapse  in  this  case. 
What  has  taken  place  is  quite  as  strong  a  disavowal  of  the  liability 
of  the  respondents  William  and  Philip  Skelton  to  perform  the  con- 
tract, as  any  notice  which  could  have  been  served.  The  creditors 
seek  to  account  for  their  delay,  by  the  fact  that  they  had  insisted 
that  Rosabella  had  no  title  enabling  her  to  perform  the  contract,  she 
being,  as  they  alleged,  only  tenant  for  life,  and  that  the  lease  of 
October  1827,  and  the  covenant  therein  contained,  expired  on  her 
death  in  July  1854.  The  Lord  Chancellor  and  the  Lord  Justice  of 
Appeal  decided,  in  April  1858,  that  Rosabella  was  tenant  in  quasi 
tail ;  and  it  followed  from  that  decision  that  Rosabella  could,  in  her 
lifetime,  have  executed  the  covenant  in  the  said  lease  of  October 
1827.  The  petitioners,  in  a  different  right  from  that  in  which  they 
now  sue,  were  parties  to  the  appeal,  and,  after  the  decision  of  that 
Court,  in  effect  admitted,  in  the  Landed  Estates  Court,  in  the  pro- 

(a)  4  Com,  R  Bep.  188.  (6)  10  Ir.  Ch.  Bep.  406. 


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HOMAN 

V. 

SKELTON. 


ceediDgs  I  have  detailed,  the  right  of  William  and  Philip  Skelton  to 
the  lands,  and  did  not  think  of  raising  the  question  of  a  right  to 
enforce  the  specific  performance  of  the  agreement  until  after  Judge 
Longfield  made  the  order  of  April  1859*  The  receiTer  in  the  former 
Chancery  cause  had  been  discharged  in  June  1858.  The  said  re-  Judgment, 
spondents  William  and  Philip  Skelton  entered  into  possession  prior 
to  November  1858,  after  the  ejectment  was  brought ;  and  they 
entered  into  a  contract  for  the  letting  of  the  lands,  for  twelve 
months,  in  November  1858;  all  claim  on  foot  of  the  contract  was 
given  up:  bat  when  it  appeared,  by  Judge  Longfield's  order  of 
April  1859)  that  a  sum  of  £200  or  thereabouts  was  to  be  awarded  to 
the  said  respondents  William  and  Philip  Skelton,  as  compensation 
in  respect  of  the  injury  done  to  the  said  lands  by  their  watercourse, 
the  petitioners  adopted  the  plan  of  obtaining  assignments  of  the  two 
judgments  in  February  1 859^  for  the  purpose  of  laying  claim  to  the 
lands,  by  reason  of  the  covenant  contained  in  the  lease  of  October 
1827,  and  with  the  view  of  obtaining  the  said  compensation.  I  do 
not  think  that,  consistently  with  any  principles  of  Equity,  a  party 
can  first  dispute  his  landlord's  title,  and  her  right  to  carry  the  con- 
tract into  effect ;  then,  when  the  landlord's  title  is  fully  established 
against  him,  abandon  all  claim  on  foot  of  the  contract,  permit  his 
landlord  to  enter  into  possession,  and  deal  with  the  lands,  enter  into 
a  contract  with  a  tenant,  and  then  seek,  under  the  circumstances  I 
have  stated,  to  set  up  the  abandoned  contract,  which  never  would 
have  been  set  up  but  for  the  decision  of  Judge  Longfield  in  April 
1859. 

The  principal  cases  on  the  subject  were  referred  to  by  the  Lord 
Chancellor,  in  Morgan  v.  Gurley  (a).  In  that  case,  his  Lordship 
adopted  the  language  of  Yice-Cbancellor  Wigram,  in  Walker  v. 
J^ffrey9^  who  said,  "  Heapky  v.  HiU  and  Wilson  v.  Reid  are  direct 
authorities  that,  if  one  of  two  parties,  concerned  in  a  contract 
respecting  lands,  gives  the  other  notice  that  he  does  not  hold  himself 
bound  to  perforp,  and  ^ill  not  perform,  the  contract  between  them, 
and  the  other  contracting  party  to  whom  the  notice  is  given  makes 
no  prompt  assertion  of  his  right  to  enforce  the  contract,  Equity  will 

(a)  1  Ir.  Chan.  Rep.  494. 


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CHANCERY  REPORTS. 


1860. 
ItoUs. 


JudgwuHi. 


consider  him  as  acquiescing  in  the  notice,  and  abandoning  any  equi- 
taUe  right  he  might  have  had  to  enforee  the  contract,  and  will  leave 
the  parties  to  their  remedies  and  liabilities  at  Law." 

Surely  what  took  place  in  the  Landed  Estates  Court  in  this  case, 
and  the  acquiescence  in  the  proceedings  of  William  and  Philip 
Skelton,  which  I  have  stated,  are  as  strong  an  intimation  to  a  party 
who  had  far  years  before  controverted  his  landlord's  title,  as  any 
notice  which  could  have  been  served.  Is  it  to  be  said,  even  if  this 
were  a  case  within  the  Tenantry  Act,  that  a  landlord  i;^ho  takes 
possession  of  land  under  an  ejectment  is  to  serve  a  notice  un^er 
that  Act  after  he  has  taken  possession  ?  A  notice  to  quit  has  been 
held  to  be  a  demand  under  the  Tenantry  Act  Lord  St.  Leonards' 
observations  in  Butler  v.  Portarlington  (a)  are  important  in  refer- 
ence to  the  proceedings  in  the  Landed  Estates  Court.  But  whether 
the  contract  in  this  case  falls  within  the  Tenantry  Act  or  not,  a 
contract  may  be  abandoned.  Where  a  tenant  holds  under  an  agree- 
ment for  a  lease,  pays  his  rent,  has  possession  of  the  property  and  the 
enjoyment  of  all  the  benefits  given  him  by  the  contract,  the  efiiuxion 
of  time  will  not  be  a  ground  for  resisting  its  enforcement.  The 
tenant,  in  such  case,  has  not  been  sleeping  on  his  rights,  but  relying 
on  his  equitable  title,  without  thinking  it  necessary  to  have  his  legal 
right  perfected  (h) ;  but  that  principle  does  not  apply  where  the 
petitioners  allowed  the  landlord  to  take  possession,  four  years  after 
the  death  of  Uie  person  for  whose  life  the  lease  was  made,  and  dis- 
puted the  landlord's  title  during  those  four  years,  adopted  a  course 
in  the  Landed  Estates  Court  which  amounted  to  an  abandonment 
of  the  coptraot,  and  then,  when  by  the  order  of  April  1869f  they 
find  that  it  would  be  their  to  interest  enforce  the  contract,  seek  to  get 
rid  of  the  efiect  of  the  abandonment,  by  obtaining  an  assignment  of 
the  judgment  against  James  Wolfe  M*Neale ;  and  they  now  contend 
that,  although  as  creditors  of  Robert  M^Neale,  they  may  have  aban- 
doned the  contract,  yet,  by  the  contrivance  of  getting  an  assign- 
ment of  the  judgment  against  James  Wolfe  M^eale,  that,  as 
creditors  of  James  Wolfe  M'Neale,  their  abandonment  of  the  con- 

(a)  1  Dr.  &  War.  62. 
(6)  See  i^  on  Sj»9iafic  Performance,  322,  323. 


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CHANCERY  REPORTS.  97 

tract  as  creditors  of  Robert  M'Neale  is  not  to  affect  them.     That  the        I860. 

RolU, 
abandonment  of  a  contract  is  an  answer  to  a  suit  for  specific  per-     ' . ' 

HOMAN 

formance  is  clear.     The  cases  are  referred  t^  by  Lord  St,  Leonards  ^ 

in  his  work  on  Vendors  and  Purchasers^  11th  ed,,  pp.  172,  173.  I  am     skelton. 
of  opinion  that  the  contract  was  abandoned  in  this  case ;  that  the  right      Judgment. 
to  enforce  the  contract  is  barred  by  laches ;  that  what  has  taken 
place  amounts  to  more  than  mere  neglect,  and   that  the  petition 
ought  to  be  dismissed. 

The  petition  will  be  dismissed  with  costs. 


BRERETON  v,  BARRY.  Miw  26,  28. 

June  1. 
Nov.  5. 

The  petition  was  filed  by  Dilliana  Brereton  to  recover  an  arrear  of  A,  being 

tenant  for  life, 
jointure,  alleged  to  have  been  charged  in  her  favour,  on  the  lands  in  withapowerto 

the  petition  mentioned,  by  a  settlement   executed  on  the  11th  of  remainder  to 

July  1846,  previously  to  her  marriage  with  Ralph  Westropp  Brere-  g^j^  byhia^m 

marriage,  in 
tall,  charged  a  jointure  on  his  second  marriage  which  was  not  aathorised  by  the  power. 
A  and  B  afterwards  joined  in  barring  the  estate  tail,  for  the  pnipose  of  securing 
by  mortgage  a  sum  advanced  to  A.  The  disentailing  deed  recited  the  power  and  the 
charge  of  the  jointure,  and  by  it  the  lands  were  conyeved  to  a  trustee,  without  pre- 
judice to  the  jointure,  to  such  uses  as  A  and  B  should  appoint,  and  in  de&ult  of 
appointment  to  ^uch  uses  as  were  subsisting  before  the  execution  thereof,  so  as  to 
secure  and  restore  the  former  title  to  the  lands.  By  a  contemporeanous  deed,  to 
which  the  jointress  was  a  party,  reciting  the  power  and  charge  of  the  jointure,  and 
the  contract  for  a  loan  of  £1000  to  A  and  B,  to  be  secured  by  a  mortgage  dischai^ed 
of  the  jointure,  but  to  the  intent  only  that  it  should  be  postponed  to  the  £I(^, 
and  the  interest  on  it ;  and  reciting  the  oonyeyance  by  the  disentailing  deed,  subject 
to  the  jointure,  A  and  B  appointed  the  lands  by  way  of  mortgage  to  secure  the 
£1000,  and  the  jointress  released  the  lands  from  the  jointure,  with  a  proviso  that  the 
release  should  take  effect  only  for  the  purpose  of  postponing  the  jointure  to  the 
£1000.  By  another  deed  of  the  same  date,  reciting  the  disentailing  deed,  and  that 
the  lands  were  charged  with  £1000,  for  the  use  of  A,  he  granted  a  rentcbarge  to  a 
trustee  for  B. — Held^  that  the  charge  of  the  jointure  being  void  was  not  confirmed 
by  the  deeds,  and  that  the  mortgage  deed  did  not  operate  as  a  re-grant  of  the  join- 
ture, the  intention  being  merely  to  postpone  the  jointure  to  the  mortgage. 

A  tenant  for  life  had  a  power,  by  deed  or  will,  to  charge  a  jointure,  not  exceeding 
£100  a-year,  for  every  £1000  which  he  should  actually  and  bona  fide  receive  with 
his  wife.  On  his  marriage,  a  life  estate  of  his  wife,  in  a  chattel  mterest  in  lands, 
was  conveyed  to  him  for  life.  The  tenant  for  life  received,  befpre  the  date  of  the 
will,  about  £2000  out  of  the  rents  of  said  \anda,^Ueid,  that  the  charge  by  his  will 
of  a  jointure  of  £200  a-year  was  valid  if  £2000  was  received,  and  that  if  said  sum 
was  not  received  the  jointure  should  abate  proportionably. 

VOL.11.  13 


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1860. 
RoUs. 

^  ■    ■    V   ■   "  ' 

BKBKBTON 

r. 

BAKRT. 

Statement 


98  CHANCERY  REPORTS. 

ton,  or  by  his  will,  in  pursuance  of  a  power  to  jointure  contained  in 
a  deed  of  the  31st  of  January  1818. 

A  former  suit  had  been  instituted  for  the  same  purpose  by  the 
petitioner,  which  was  dismissed,  on  the  ground  that  the  power  had 
not  been  well  executed,  as  no  fortune  had  been  received  by  Ralph 
W.  Brereton,  which  would  have  authorised  him  to  charge  the 
jointure  (a).  But  it  having  appeared,  in  the  progress  of  the  suit, 
that  certain  deeds  had  been  executed  on  the  22nd-  of  November 
1 850,  by  Arthur  Brereton,  under  whom  the  respondents  claimed, 
which  might  have  operated  as  a  confirmation  of  the  jointure,  the 
petition  in  that  suit  was  dismissed,  without  prejudice  to  the  peti- 
tioner filing  a  further  cause  petition,  stating  fully  the  grounds  on 
which  she  sought  to  establish  her  claim. 

The  petition  in  this  matter  was  accordingly  filed.  It  relied  on 
the  settlement  of  the  11th  of  July  1846,  as  an  execution  of  the 
power  to  jointure,  and  on  the  deeds  of  the  22nd  of  November 
1850,  which  are  fully  stated  in  his  Honor's  judgment,  as  preclud- 
ing Arthur  Brereton,  and  the  respondents  who  claimed  under  him, 
from  questioning  the  execution  of  the  power  by  the  settlement  of 
the  nth  of  July  1846 ;  and  it  also  relied  on  the  will  of  Ralph  W. 
Brereton,  as  an  execution  of  the  power.  The  will  was  made  on  the 
18th  of  March  1855.  The  following  was  the  part  of  it  relied  on  as 
an  appointment : — '*  And  whereas,  by  the  marriage  settlement  exe- 
cuted by  me  previous  to  my  intermarriage  with  my  present  wife,  I 
charged  all  that  and  those  the  farms,  towns  and  lands  of  Loughglass, 
&c,,  with  one  annuity  or  yearly  sum  of  £200,  as  and  for  a  jointure, 
to  be  paid  to  my  said  intended  wife,  in  case  she  survived  me ;  now 
I  hereby  ratify  said  arrangement,  and  I  hereby  charge  said  lands 
and  premises  with  the  payment  of  the  annual  sum  of  £200  sterling, 
to  be  paid  and  payable  to  my  dearly  beloved  wife,  as  and  for  her 
jointure,  in  case  she  should  survive  me,  with  full  power  and  lawful 
authority  for  the  said  Dilliana  Brereton,  or  her  assigns,  at  all  times 
during  her  life,  to  enter  into  and  upon  said  premises,  and,  if  neces- 
sary, to  distrain  for  same,  and  the  distress  and  distresses  there  found 
to  be  disposed  of  according  to  law,  and  by  the  sale  thereof  to  pay 
off  and  discharge  any  arrears  of  said  annuity  or  jointure  that  may 

(a)  See  Brereton  y.  Barrif  (10  Ir.  Chan.  Rep.  86). 


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be  doe  at  the  time  of  such  difltrees,  and  all  costs  and  expenses  that 
may  attend  the  distraining  for  same  ;  and  I  hereby  further  will  and 
devise  to  my  said  wife,  DiUiana  Brereton,  said  annuity,  yearly  rent- 
charge  and  sum  of  £200,  as  and  for  her  jointure,  and  to  be  charged 
and  chargeable  on  the  premises  aforesaid/'  The  power  in  the  deed 
of  the  31st  of  January  1818,  the  settlement  of  the  11th  of  July 
1846,  and  the  deeds  of  the  22nd  of  November  1850,  are  fully  stated 
in  his  Honor's  judgment,  and  in  the  report  of  the  former  case. 


1860. 
BoUt. 


Statement, 


Mr.  Serjeant  Lawson^  Mr.  Bretaster  and  Mr.  Philip  Keoghy  for 
the  petitioner. 

They  contended, '  first,  as  in  the  former  suit,  that,  having  regard 
to  the  value  of  the  lands  of  Ardgart,  and  the  rents  received  thereout 
by  Ralph  W.  Brereton,  the  settlement  of  the  11th  of  July  1846 
was  an  execution  of  the  power.  Secondly  ;  that  the  effect  of  the 
deeds  of  the  22nd  of  November  1850  was  to  convey  the  estate,  sub- 
ject to  the  jointure,  so  as  to  validate  it,  either  by  way  of  confirma- 
tion, Co.  Lii^f  p.  295  6,  p.  800  a,  or  by  way  of  re-grant ;  that  if 
a  tenant  for  life,  with  a  power  of  leasing,  make  a  lease  not  war- 
ranted by  the  power,  and  he  and  the  remainderman  afterwards 
J9in  in  opening  the  estate,  subject  to  the  lease,  the  lease  is 
confirmed:  Steele  v.  Mitchell  {a);  Stoughton  v.  Crosbie(b); 
and  those  cases  were  analogous  to  the  present  case.  There 
was  full  consideration  given  by  the  petitioner  for  a  re-grant  of 
the  jointure :  Nixon  v.  Hamilton  (c) ;  Lighthume  v.  WEvoy  (d)  ; 
Fitzmaurice  v.  Sadlier{e)\  In  re  HartfortQ).  Thirdly;  that 
the  will  of  Ralph  W.  Brereton  was  a  due  execution  of  the  power. 
Such  a  power  might  be  executed  in  favour  of  the  wife  at  different 
times,  provided  the  limits  of  the  power  be  not  exceeded :  2  Sug.  on 
Powers,  p.  290,  7th  ed. ;  Hervey  v.  Uervey  (g).  That  the  will 
must  be  taken  to  speak  from  the  testator's  death;  and  from  1846 
until  his  death,  Ralph  W.  Brereton  had  received  from  the  rents  of 
the  lands  of  Ardgart  a  sum  sufficient  to  empower  him  to  cliarge  the 


(a)  3  Ir.  Bq.  Rep.  I. 
(c)  1  Ir.  £q.  Rep.  46. 
(e)  9  Ir.  Eq.  Rep.  595. 


(6)  5  Ir.  Eq.  Rep.  451. 
(rf)  4  It.  Jut.  179. 
(f)  3  It.  Jut.  5. 


Argument, 


(jg)  1  Atk.  561. 


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CHANCERY  REPORTS. 


1860. 
RoUs. 


Argument. 


full  amount  of  £200  a-year,  or  (if  be  did  not  receive  £2000)  to  charge 
a  jointure  in  proportion  to  the  sum  which  he  had  actually  received : 
Lord  TyrconneH  v.  T^e  Duke  of  Ancaster  (a)  ;  Holi  v.  HoU  (b) ; 
Lane  v.  Page  (c). 

Mr.  WarreUy  Mr.  Lawless  and  Mr.  James  Murphy^  for  the 
respondents,  contended  that  the  valuation  of  the  lands  of  Ard- 
gart,  on  pretence  of  which  the  jointure  was  charged  by  the  settle- 
ment of  the  11th  of  July  1846,  was  a  valuation  of  the  entire  interest 
in  the  lands,  and  not  of  the  petitioner's  life  interest  in  them,  which 
alone  was  conveyed  by  that  settlement.  It  was,  therefore,  not  a 
bona  fide  settlement,  but  an  evasion  of  the  condition  imposed  on  the 
power,  and  absolutely  void  against  the  remainderman.  It  could 
not,  therefore,  be  confirmed.  A  voidable  deed  may,  but  a  void  one 
cannot,  be  confirmed:  Co.  Lit.^  p.  295  b;  Massy  v.  Baiwell(d); 
2  Sug.  on  Powers,  p.  308;  StronghiU  v.  Buck{e).  Even  if 
the  deed  of  1846  were  voidable  only,  the  parties  were  not  apprised 
of  or  aware  of  their  rights  in  the  transaction  of  1850,  and  the  latter 
could  not,  therefore,  have  the  effect  of  a  confirmation.  They 
could  not  confirm  what  they  knew  nothing  about:  Murray  v. 
Palmer  (f)  ;  Dunbar  v.  Tredennick  (g) ;  Roche  v.  O'Brien  (A). 
The  cases  of  Steele  v.  Mitchell^  and  Stoughton  v.  Crosbie,  relied 
on  for  the  petitioner,  were  cases  where  the  assets  of  the  tenant  for 
life  were  liable  on  the  covenants  in  the  void  leases ;  and,  in  order 
to  avoid  circuity,  the  Court  estopped  the  parties  from  denying  the 
validity  of  the  leases :  Carpenter  v.  JBuller  (t).  The  question  as 
to  whether  the  deed  of  1 850  amounted  to  a  re-grant  was  a  question 
of  intention.  The  parties  had  no  intention  that  it  should  operate  as 
a  re-grant,  for  they  were  dealing  with  what  they  supposed  to  be  a 
valid  charge,  and  postponing  it  to  the  mortgage:  In  re  Hartfori (k). 
The  power  might,  no  doubt,  have  been  executed  by  the  will,  but 


(a)  2  Ves.  500. 
(c)  Ambl.  235. 
(«)  14  Q.  B.  78. 
(g)  2  Ball  &B.  204. 
(0  8  M.  &  W.  209. 


(6)  2  P.  Wms.  648. 
(<f)  4  Dr.  &  War.  79. 
Cf)  2Sch.&Lef.485.. 
(A)  I  Ball  &  B.  330. 
(*)  8  It.  Jur.  5. 


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the  same  condition  was  annexed  to  its  execution  by  the  will  as  to 
lis  execution  bj  the  settlement  of  1846;  and  the  question  still  re- 
roainedf  whether  the  receipt  bj  the  husband  of  the  rents  of  Ardgart 
was  a  sufficient  compliance  with  that  condition?  The  receipt  of 
the  income  of  lands  of  the  wife  was  not  a  compliance  with  that  con- 
dition, and  would  not  authorise, the  charge  of  the  jointure:  Doe  v. 
Milbame  (a). 


I860. 
Rolh. 


The  Master  of  the  Rolls. 

The  petition  in  this  case  has  been  filed  to  recover  an  arrear  of 
jointure,  claimed  by  the  petitioner  to  be  due  to  her  out  of  the  lands 
in  the  petition  mentioned,  under  the  settlement  executed  on  her 
marriage  with  Ralph  Westropp  Brereton,  dated  the  11  th  of  July 
1846,  or  under  the  will  of  the  said  Ralph  Westropp  Brereton ;  and  the 
questions  which  arise  are,  first,  whether  Ralph  Westropp  Brereton, 
who  was  tenant  for  life  of  said  lands,  under  a  deed  of  the  31st  of 
January  1818,  and  who  had  a  power  to  charge  a  jointure  thereon, 
upon  the  conditions  stated  in  that  deed,  duly  executed  such  power 
by  the  settlement  of  the  11th  of  July  1846?  Secondly;  whether 
it  is  open  to  the  respondents,  who  claim  under  Arthur  Brereton,  to 
raise  the  question  that  the  power  was  not  duly  executed  ?  having 
regard  to  the  provisions  contained  in  certain  deeds  execdted  by  the 
said  Arthur  Brereton,  who  was  the  eldest  son  of  Ralph  Westropp 
Brereton  by  a  former  marriage,  and  to  which  deeds  I  shall  hereafter 
particulaiiy  refer.  Thirdly;  whether  the  power  to  jointure  was 
duly  executed  by  the  will  of  Ralph  Westropp  Brereton? 

A  former  petition  was  filed  by  the  present  petitioner  against  the 
present  respondents,  to  raise  the  arrears  of  the  said  jointure,  which 
petition  was  referred  to  William  Brooke,  Esq.,  by  the  Lord  Chan- 
cellor, undet  the  15th  section  of  thiB  Court  of  Chancery  (Ireland) 
Regulation  Act  The  will  of  Ralph  Westropp  Brereton  was  not 
put  in  issue  or  relied  on  in  that  suit,  the  jointure  halting  been 
claimed  only  under  the  deed  of  the  Uth  of  July  1846.  Master 
Brooke,  made  an  order  on  the  27th  of  October  1859»  dismissing  that 
petition,  being  of  opinion  that  the  petitioner  had  not  any  fortune 
authorising  the  power  to  be  executed  by  the  deed  of  July  1846, 

(a)  2  T.  R.  721. 


ArgummU, 


Nov.  5. 
Judgment. 


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CHANCERY  REPORTS. 


1860. 
BolU. 


Judgment, 


having  regard  to  the  terms  of  the  deed  of  1818,  containiDg  the  power. 
The  case  was  brought  before  me  by  way  of  appeal,  and  I  was  of 
opinion  that  the  Master  was  right  on  the  point  argued  before  him 
and  before  me ;  but  I  thought  there  might  possibly  be  a  question 
whether  the  respondents,  who  claimed  as  volunteers  under  Arthur 
Brereton  (the  eldest  son  of  Ralph  Westropp  Brereton  by  a  former 
marriage),  could  dispute  the  petitioner's  claim  to  the  jointure,  having 
regard  to  certain  deeds  executed  by  Arthur  Brereton,  and  referred 
to  in  the  former  petition.  I,  however,  did  not  offer  any  opinion  on 
the  point,  not  having  then  seen  copies  of  the  deeds.  That  question 
not  having  been  raised  on  the  former  petition,  or  the  question 
.whether  the  will  of  Ralph  Westropp  Brereton  was  a  due  execution 
of  the  power,  and  Counsel  for  the  petitioner  being  desirous  to  file  a 
new  petition,  in  which  the  alleged  rights  of  the  petitioner  should 
be  more  fully  put  forward  than  in  the  former  petition,  I  made  an 
order  on  the  appeal  motion,  dated  the  22nd  of  February  1860, 
whereby  it  was  ordered  that  the  motion  should  be  refused  with  costs, 
to  be  paid  by  the  petitioner  to  the  respondents,  the  order  to  be  with- 
out prejudice  to  the  petitioner,  if  so  advised,  filing  a  further  cause 
petition,  stating  fully  the  ground  on  which  she  sought  to  establish 
her  claim.     The  present  petition  has  accordingly  been  filed. 

With  respect  to  the  first  question,  I  was  of  opinion  on  the  former 
petition  that  Ralph  Westropp  Brereton  had  not  actually  and  bona 
fide  received  £2000,  or  any  fortune,  on  his  marriage  with  the  peti- 
tioner, authorising  the  execution,  by  the  deed  of  the  11  th  of  July 
1846,  of  the  power  of  jointuring  given  by  the  deed  of  1818.  Hav- 
ing stated  the  material  facts  of  the  case,  so  far  as  they  relate  to  the 
first  question,  when  giving  judgment  on  the  former  petition;  and  the 
grounds  of  my  decision,  it  is  not  necessary  to  repeat  them  now.  The 
case  is  not  as  yet  reported,  but  it  will,  I  presume  be  reported 
shortly  (a). 

It  is,  no  doubt,  now  stated,  which  was  not  alleged  when  the  former 
petition  was  heard,  that  Ralph  Westropp  Brereton  received  £200 
at  the  time  of  his  marriage ;  and  it  will  be  necessary  to  direct  a 
reference  to  the  Master  to  inquire  and  report  whether  Ralph  Westropp 
Brereton  received  ahy  fortune  with  his  wife,  previous  to  or  at 

(a)  Since  reported,  10  Ir.  Chan.  Rep.  376. 


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the  time  of  the  execution  of  the  deed  of  marriage  settlement  of 
the  11th  of  Jaly  1846,  exclusive  of  the  conveyance  of  tHe  lands 
of  Ardgart,  as  therein  mentioned.  I  continue  of  the  opinion  ex- 
pressed on  the  hearing  of  the  former  petition,  that  the  convey- 
ance of  Ardgart  to  Ralph  Westropp  Brereton  for  life  (the  petitioner 
having  only  a  life  interest  therein)  did  not  authorise  the  settle- 
ment of  the  jointure  of  £200  a-year  on  the  petitioner.  The 
grounds  of  that  opinion  are  stated  in  my  former  judgment 

The  second  question,  however,  which  is  raised  for  the  first  time 
upon  the  present  petition,  must  be  considered.  The  facU  which  give 
rise  to  that  question  are  as  follow: — Ralph  Westropp  Brereton 
married  his  first  wife,  Ellen  Gray,  in  1826.  She  died  in  1832,  leav- 
ing Arthur  Brereton  the  younger  her  eldest  son,  and  two  other 
sons  and  three  daughters  her  surviving.  Ralph  Westropp  Brereton 
married  the  petitioner,  his  second  wife,  in  July  1846,  and,  in  con- 
templation of  the  said  marriage,  the  settlement  of  the  11th  of  July 
1846  was  executed,  which  purported  to  exercise  the  jointuring 
power  contained  in  the  deed  of  1818,  in  favour  of  the  petitioner. 
Arthur  Brereton  the  younger  attained  his  age  previous  to  the  22nd 
of  November  1860,  that  is  to  say,  in  March  1849*  Under  the 
limitations  in  the  settlement  of  1818,  Ralph  Westropp  Brereton  was 
tenant  for  life  of  the  lands  thereby  settled,  with  remainder  to 
Arthur  Brereton  in  tail.  Ralph  Westropp  Brereton  was  desirous  to 
borrow  money,  on  a  mortgage  of  the  said  settled  lands,  and  it  was 
necessary,  in  order  to  effect  that  object,  that  Arthur  Brereton  should 
join  in  the  mortgage,  and  it  appears  to  have  been  considered  neces- 
sary by  the  mortgagee  that  the  petitioner  should  consent  to  give 
priority  to  the  mortgage  over  her  jointure.  Four  deeds  were 
accordingly  executed,  on  the  22nd  of  November  1850.  The  dis- 
entailing deed  was  made  between  the  said  Ralph  Westropp  Brereton 
and  the  said  Arthur  Brereton  of  the  one  part,  and  William  John 
(jreary  of  the  other  part.  It  recites  the  settlement  of  the  31st  of 
January  1818,  and  that,  by  indenture  of  the  11th  of  July  1846, 
Ralph  Westropp  Brereton,  in  exercise  of  the  power  contained  in 
the  deed  of  1818,  charged  the  lands  with  a  jointure  of  £200  for  the 
petitioner.    It  further  recites  that  the  said  Ralph  Westropp  Brereton 


1860. 
BoOm. 


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1860. 
RotU. 


Judgment, 


and  Arthur  Brereton  were  desirous  that  the  inheritance  in  fee-simple 
in  the  lands  should  be  settled  in  the  manner  thereafter  mentioned ; 
and  after  subh  recitals  the  indenture  witnessed  that,  for  the  purpose 
of  barring  the  estate  tail  in  the  lands  vested  in  said  Arthur  Brereton, 
the  said  Ralph  Westropp  Brereton,  and  Arthur  Brereton,  and  the 
said  Arthur  Brereton,  with  the  concurrence  of  Ralph  Westropp 
Brereton,  as  protector  of  the  settlement,  conveyed  to  William  John 
Geary  the  said  lands  (particularly  described  in  the  deed),  to  hold  to 
said  AV.  J.  Greary  and  his  heirs,  discharged  of  all  estates  tail,  and  all 
remainders  over,  ^*  and  without  prejudice  to  the  said  yearly  sum  of 
£200,  by  the  said  indenture  of  settlement  of  the  11th  of  July  1846 
limited  and  secured  to  the  said  Dilliana  Brereton  during  her  life, 
as  aforesaid,  and  the  aforesaid  power  of  enforcing  payment  thereof^ 
and  to  the  term  of  ninety-nine  years  by  the  same  deed  limited 
to  J.  P.  Molony  and  F.  Jackson,  and  the  trusts  thereof,**  upon  the 
trusts  and  further  purposes  in  said  deed  of  the  22nd  of  November 
1850  mentioned ;  that  is  to  say,  to  such  uses  as  Ralph  Westropp 
Brereton  and  Arthur  Brereton  should,  by  any  deed  or  deeds  to  be 
executed  as  therein  mentioned,  direct  or  appdnt ;  and,  in  default  of 
such  appointment,  or  so  far  as  same  shall  not  extend,  to  such  uses  as 
were  subsisting  before  the  execution  of  the  said  presents,  **  so  as  to 
secure  and  restore  the  former  title  to  the  said  lands  and  premises,  and 
every  part  thereof.'*  There  is  some  obscurity  in  the  last  passage,  but 
the  object  appears  to  have  been  that  the  remainder  in  tail  to  the  said 
Arthur  should  not  be  barred,  except  so  far  as  the  power  given  by  the 
said  deed  to  Ralph  Westropp  Brereton  and  Arthur  Brereton  should  be 
exercised  ;  and,  in  fact,  Arthur  Brereton  derived  no  benefit  from  uiy 
of  the  deeds,  except  so  far  as  the  £30  a-year  provided  for  him  by  one 
of  the  said  deeds  (to  which  I  shall  just  now  refer)  was  a  benefit.  The 
petitioner  was  no  party  to  the  disentailing  deed,  but  all  the  deeds  of 
the  22nd  of  November  1850  are  to  be  considered  together,  being  part 
of  the  same  transaction «  A  deed  of  equal  date  was  executed  (22nd  of 
November  1850)  by  and  between  the  said  Ralph  Westropp  Brereton 
and  Arthur  Brereton,  of  the  first  part,  Dilliana  Brereton  (the  peti- 
tioner), the  wife  of  the  said  Ralph  Westropp  Brereton,  of  the  second 
part,  Anne  Williamson  of  the  third  part,  Frederick  Jackson  of  the 


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foorth  part^  and  Henij  H(^kiQip  Foster  of  the  fifth  part. .  Tba^  1860. 
deed  recited  the  indeotore  of  the  Slet  of  January  181$.  It  then  -  J^!^'  - 
recited  an  indenture  of  the  22nd  of  JT^uary  1844,  under  which  the  ^^'^^'^ 
said  Anne  TyUliamson  ^as  entitled  to  a  rentcharge  of  £70.  186.  9d^  babbt. 
charged  on  said  lands  in  her  fiiivour  by  the  said  Ralph  Westrq>p  judgment- 
BreretoB.  It  then  recited  t^e  settlement  of  the  11th  of  July  1846, 
and  the  exercise  of  the  jcMuturlng  power  by  BaJph  Westropp  Brereton, 
charging  the  knds  with  the  jointure  of  £200  a-year  for  the  peti- 
tioner, and  the  ppwer  of  distress  thereby  c^reaAed.  It  then  roeited 
that  Arthur  Brereton  attained  his  age  on  the  18th  of  March  1849, 
and  it  .tl^en  recited  as  follows : — '*  And  whereas  the  said  Ralph 
Westr^pp  BreretQn  and  Arthur  Brereton,  having  occasion  for  the 
sum  of  £1000,  have  applied  to  the  8ai4  Henry  H.  Foster  to  lend 
theut  the  same,  ^hich  he  ha3  accordingly  agreed  to,  upon  having 
the  repayment  thereof,  with  interest  thereon  in  the  meantime, 
sec^nred  to  him  by  a  mortgage  of  the  said  lands."  The  deed  then 
contaipp  a  further  recital  that  the  lands  should  be  conveyed  to  the 
sfiid  mortgagee,  H.  H.  Foster,  discharged  of  Anne  Williamson's 
^wuity,  "  aud  also  free  and  discharged  from  the  said  yearly  sum  of 
£200,  by  the  said  indenture  of  settlement  of  the  11th  of  July  1846 
limited  and  secured  to  the  said  DiUiana  Brereton  (the  petitioner)  and 
her  asAigna^^as  hereinbefore  is  nientioned ;  but  as  to  the  said  yearly 
sum»  to  the.eod  and  intent  only  that  the  same  should  be  postponed 
to  the  jwid  sum  of  £1000,  and  the  interest  thereof,  and  that  the 
said  sum  and  interest  ahould  have  priority  over  and  be  a  prior  or 
superior  inctimbratice  thereto,  upon  or  affecting  the  said  landsJ^ 
It  then  recited  the  deed  of  equal  date,  barring  the  estate  tail,  and  the 
conveyance  thereby  to  William  John  Geary,  ^'subject,  however, 
and  without  prejudice  to  the  said  yearly  sum  of  £200,  by  the  said 
indenture  of  the  11th  of  July  1846  limited  and  secured  to  the  said 
Dilliana  Brereton  and  her  assigns  during  her  life,  and  to  the  power 
for  enforcing  payment  thereof; "  and  it  recited  the  uses  declared  by 
the  said  deed  of  equal  date,  barring  the  entail ;  and  after  such  reci- 
tals the  indenture  witnessed  that,  in  consideration  of  the  said  sum  of 
£1000  paid  to  the  said  Ralph  Westropp  Brereton  and  Arthur  Brereton 
by  the  said  H.  H.  Foster,  the  receipt  whereof  they  thereby  acknow- 
VOL.  11.  14 


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CHANCERY  REPORTS. 


I860. 
BolU. 


Judgment, 


ledged,  the  said  Ralph  We^ropp  Brereton  and  Arthur  Brereton, 
in  pursuance  of  the  powers  in  the  said  disentailing  deed  of  equal 
date,  appointed  the  lands  (particularly  describing  them)  to  the  said 
H.  H.  Foster,  subject  to  redemption  on  the  repayment  of  the  £1000 
with  interest.  The  indenture  then  contained  a  clause  whereby  the 
petitioner  released  the  lands  from  her  jointure  of  £200  a-year,  and 
all  powers  and  remedies  for  securing  payment  thereof,  and  she 
joined  in  conveying  the  lands  to  H.  H.  Foster,  discharged  of  the 
jointure,  and  from  all  powers  and  remedies  for  enforcing  payment 
thereof. 

The  indenture  then  contains  a  proviso  and  agreement  that  the 
release  by  the  petitioner  of  her  jointure  should  take  effect  only  for 
the  purpose  of  postponing  and  deferring  the  said  yearly  jointure  of 
£200  to  the  said  sum  of  £1000 ;  so  that  the  £1000  should  be  taken 
to  be  a  prior  incumbrance,  but  not  otherwise.  That  deed  was 
executed  by  Ralph  Westropp  Brereton,  Arthur  Brereton,  Dilliana 
Brereton  the  petitioner,  and  Anne  Williamson.  By  another  deed, 
of  equal  date  (22nd  of  November  1850),  and  purporting  to  be  made 
by  and  between  the  said  Ralph  Westropp  Brereton,  of  the  first  part, 
the  said  Arthur  Brereton,  of  t^e  second  part,  and  Greorge  Stamer 
Brereton,  of  the  third  pkrty  after  reciting  that,  under  the  deed  of 
the  31st  of  January  1818,  the  said  Ralph  Westropp  Brereton  hath 
become,  and  now  is,  entitled  to  an  estate  for  life,  with  remainder  in 
tail  male  to  his  son,  the  said  Arthur  Brereton,  in  the  said  lands 
(describing  them),  the  said  deed  of  the  22nd  of  November  1850 
contains  the  following  inaccurate  recital  of  the  disentailing  deed,  of 
equal  date: — **  And  whereas  the  said  Arthur  Brereton  being,  entitled 
to  an  estate  in  tail  of  and  in  said  lands,  expectant  upon  the  decease 
of  his  father,  the  said  Ralph  Westropp  Brereton,  and,  having 
attained  his  age  of  twenty-one  years,  by  deed,  bearing  equal  date 
with  these  presents,  and  made  between  the  said  Ralph  Westropp 
Brereton  and  the  said  Arthur  Brereton,  of  the  one,  and  William 
John  Geary,  of  the  other  part,  the  said  Ralph  Westropp  Brereton 
and  Arthur  Brereton,  according  to  their  respective  estates  and 
interests  therein,  did  grant,  convey  and  assure,  unto  the  said 
William  John  Geary,  and  to  his  heirs,  all  that  and  those  the  said 


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several  lands  thereinafter  more  particularly  mentioned,  situate  in 
the  Queen's  County,  to  hold  to  the  said  William  John  Greary  and 
his  heirs,  for  ever,  upon  the  trusts  therein  mentioned,  freed  and 
absolutely  discharged  of  and  from  all  estates  tail  of  the  said  Arthur 
Brereton,  and  all  other  estates  tail,  remainders,  reversions,  condi- 
tions and  limitations  thereinbefore  expectant  and  depending ; "  and 
then  follows,  as  a  recital  of  the  contents  of  the  disentailing  deed, 
which  is  not  contained  therein,  "  but,  nevertheless,  charged  with 
the  sums  of  £1000  and  £500,  by  way  of  mortgage,  for  the  use  of 
the  said  Ralph  Westropp  Brereton ;  and  subject  thereto,  that  the 
said  several  lands  should  go  and  enure  to  the  use  of  the  said  Ralph 
Westropp  Brereton  and  his  assigns,  for  and  during  the  term  of  his 
natural  life ;  and,  from  and  after  the  decease  of  the  said  Ralph 
Westropp  Brereton  (and  what  next  follows  is  also  an  inaccurate 
statement  of  the  disentailing  deed),  *'  to  the  use  of  the  said  Arthur 
Westropp  Brereton  for  life,  with  remainder  to  his  first  and  other 
sons  in  tail  male,  with  divers  remainders  over,  as  therein  men- 
tioned." And  then  follows  a  recital  that,  in  order  to  make  a 
provision  for  the  said  Arthur  Brereton,  during  the  lifetime  of  the 
said  Ralph  Westropp  Brereton,  he  the  said  Ralph  Westropp  jBre- 
reton  had  agreed  to  grant  to  the  said  Greorge  Stamer  Brereton 
one  dear  annuity  or  yearly  rentcharge  of  £30,  to  be  paid  quarterly, 
to  and  for  the  use  of  the  said  Arthur  Brereton,  during  the  lifetime 
of  his  said  father ;  and,  after  such  recitals,  Ralph  Westropp  granted 
the  rentcharge  to  the  said  trustee,  for  the  use  of  the  said  Arthur 
Brereton.  Arthur  Brereton*  does  not  appear  to  have  executed  that 
deefd.  A  fourth  deed,  of  equal  date,  was  executed ;  but  it  does 
not  appear  to  affect  the  questions  in  this  case. 

Arthur  Brereton  died  in  November  1858,  having  previously  exe- 
cuted a  further  disentailing  deed,  in  April  1858,  and  thereby  limited 
the  lands  to  himself  for  life,  and,  after  his  death,  to  the  respondents, 
in  the  manner  therein  mentioned.  The  respondents  claim  as  volun- 
teers under  Arthur  Brereton ;  and,  if  he  was  not  at  liberty  to 
dispute  the  petitioner's  jointure,  neither  are  they. 

It  is  contended  on  the  part  of  the  respondents^that  the  entire  amount 
of  the  mortgage  money  was  received  by  Ralph  Westropp  Brereton. 


1860. 
RolU, 


Judgment. 


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1860.        The  mortgage  deed  contains  the  recital  that  the  £1000  was  paid 
to  the  father  and  son  ;  and  there  is  a  receipt  indorsed  on  the  deed. 


signed  by  both^  acknowledging  the  receipt  of  the  money  ;  bat  it 
appears  to  me  that  the  recitals  in  the  deed  granting  the  annuity 
Judgnmt.     ^^  ^^^  a-year  to  Arthur  Brereton  establish  that   the  £1000  was 
for  the  use  of  Ralph  Westropp  Brereton  alone,  and  received  by 
him.    The  affidavit  of  Mr.  Geary  is  also  important  on  this  poiot. 
Now,  of  course,  if  the  jointuring  power  was  not  duly  executed, 
and  the  execution  was  void,  a  void  instrument  cannot  be  con- 
firmed.   But  it  has  been  argued,  on  the  part  of  the  petitioner, 
that  the  effect  of  the  instruments  was,  that  there  was  a  new 
grant  of  the  £200  a-year  by  Ralph  Westropp  Brereton  and  Arthur 
Brereton  to  the  petitioner.     I  have  considered  this  question  with 
a  desire  to  see  sufficient  ground  to  hold  that  there  was  a  re-grant ; 
but  I  am  of  opinion  that  there  was  not  a  re-grant,  and  that  the 
effect  of  the  deed  of  mortgage  was  only  to  postpone  the  jointure 
for  the  benefit  of  Ralph  Westropp  Brereton,  and  to  enable  him 
to  raise  the  £1000.    It  never  occurred  to  the  parties,  so  far  as 
I  can  judge,  from  a  careful  perusal  of  the  deeds  of  November  1850, 
that  the  jointure  was  invalid.    The  £30  a-year  was  not  granted 
to  Ardiur  Brereton  as  a  consideration  for  a  confirmation  or  re-grant 
of  the  jointure.     The  £30  a-year  was  granted  as  a  consideration 
for  Arthur  Brereton  joining  his  father  in  the  mortgage ;  and  the 
petitioner  was  only  made  a  party  at  the  instance  of  and  for  the 
security  of  liie  mortgagee.    The  affidavit  of  Mr.  Geary  is  important 
in  the  case.     It  is  impossible,  in  considering  the  transaction  of 
the  22nd  of  November  1850,  not  to  feel  that  Arthur  Brereton 
had  not  adequate  and  independent  advice.     There  are  observations 
in  Savory  v.  King{a\  which  are  applicable  to  the  present  case. 
I  cannot  come  to  the  conclusion  that  the  petitioner  joining  with 
her  husband,  simply  to  give  precedence  to  the  mortgage  over  the 
jointure,  made  the  deed  a  confirmation  of  the  jointure,  if  it  was  void ; 
or  a  re-grant  of  a  new  annuity,  which  re-grant  was  not  intended  by 
the  son,  so  far  as  I  can  judge,  from  a  perusal  of  the  deeds.     The 
petitioner's  Counsel  have  argued  the  question  not  upon  the  ground 

(a)  5  H.  L.  Cas.  627. 


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of  coDfirmation;  but  of  a  re- grant,  feeling  the  difficulty  of  con-  I860, 
tending  that,  under  the  circumstances  of  the  case,  the  execution 
of  the  power,  if  void,  could  be  confirmed ;  but,  even  if  the  exe- 
cution of  the  power  was  not  absolutely  void,  but  only  impeachable, 
I  do  not  think,  having  regard  to  the  authorities,  that  the  petitioner  Judgment, 
could  sustain  this  suit,  by  reason  of  the  provisions  in  the  deeds 
of  the  22nd  of  November  1850.  Lord  Si.  Leonards^  in  his  treatise 
on  Ven.  and  JPur.,  13th  ed.,  pp.  212,  213,  states,  "  To  give  validity 
to  a  confirmation  of  a  voidable  conveyance,  the  party  confirming 
must  not  be  ignorant  of  his  right ;  nor,  of  cdurse,  must  his  right 
be  concealed  from  him  by  the  person  to  whom  the  confirmation 
is  made.  He  must  know  the  transaction  to  be  impeachable  that 
he  is  about  to  confirm ;  and  with  this  knowledge,  and  under  no 
influence,  he  must  spontaneously  execute  the  deed;  and  he  must 
be  fully  aware  not  only  of  the  fact  upon  which  the  defect  of 
title  depends,  but  of  the  consequences  in  point  of  law;  and  he 
must  in  fiict  be  a  free  agent,  and  not  under  the  infinence  of  the 
previous  transaction."  I,  therefore,  am  of  opinion  that  there  was 
no  confirmation  of  the  petitioner's  jointure,  and  no  re-grant  of  a 
new  annuity.  All  that  was  contemplated,  taking  all  the  deeds 
together,  was,  that  the  jointure  was  to  be  postponed  to  the  mort- 
gage; but  it  did  not  thereby  acquire  any  additional  validity. 

The  remaining  question  is,  whether  the  will  of  Ralph  Westropp 
Brereton  operated  as  an  exercise  of  the  power  ?  It  was  not  con- 
tended that  the  execution  of  the  disentailing  deed,  of  the  22nd  of 
November  1 850,  extinguished  the  jointuring  power.  I  had  occasion 
to  consider  that  question  in  0*Fay  v.  Burke  (a),  and  I  then  stated 
the  ground  Upon  which  I  considered  the  power  was  not  extinguished. 
It  is  contended,  on  the  part  of  the  petitioner,  that  in  determining 
the  question  whether  the  will  of  Ralph  Westropp  Brereton  operated 
as  an  execution  of  the  power,  the  Court  should  take  into  considera- 
tion the  rents  of  Ardgart  received,  from  year  to  year,  by  Ralph  West- 
ropp Brereton,  before  the  execution  of  the  will,  and  that  such  rents 
so  received,  having,  as  is  alleged,  exceeded  £2000,  Ralph  Westropp 
Brereton  was  authorised  to  charge,  by  his  will,  a  jointure  of  £200 

(a)  8  Ir.  Chan.  Bep.  244,  245. 


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110  CHANCERY  REPORTS. 

I860.      ,  a-year.     It  is  contended,  on  the  part  of  the  respondents,  that  if  a 
^    ■  V   '— *     property  conveyed  to  a  husband  for  his  life  does  not  authorise  the 

BBERETON  .  «  «...  ,  ,  ,  .  -  .. 

^^  execution  of  a  power  of  jointuring,  that  the  annual  receipts  of  the 

BARRY.  property,  which  would  probably  be  spent  as  they  are  received,  do 
Judgment.  ^^  authorise  its  execution ;  and  that  those  annual  receipts  do  not 
constitute  a  sum  or  sums  '* actually  and  bona  fde  received"  with 
the  wife,  within  the  meaning  of  the  power.  This  appears  to  me  to 
be  a  question  of  some  difficulty,  and  it  will  be  right  to  ascertain  the 
amount  of  the  rents  of  Ardgart  received  by  the  late  Ralph  Westropp 
Brereton,  previous  to  the  execution  of  his  will.  I  am  of  opinion, 
however,  that  if  £2000  was  actually  and  bona  fide  received  out  of 
Ardgart,  by  Ralph  Westropp  Brereton,  before  the  execution  of 
the  will,  the  power  was  well  executed  by  the  will ;  and  that  if  a 
less  sum  was  received,  the  power  was  well  executed,  to  the  extei^t  of 
the  sums  received ;  that  is,  if  less  than  £2000  was  received,  the  join- 
ture of  £200  must  abate  proportionally.  It  was  not  necessary,  I 
apprehend,  under  a  power  in  the  terms  of  the  power  in  this  case,  that 
the  fortune  of  the  wife  should  have  been  received  at  the  period  of 
the  marriage.  There  may  be  successive  executions  of  a  power  to 
jointure,  such  as  is  contained  in  the  deed  of  1818,  in  respect  of 
successive  portions  of  the  wife's  fortune  received,  from  time  to  timt, 
by  the  husband :  2  Sug,  on  Powers^  6th  ed.,  vol.  2,  p.  310 ;  Zaueh 
V.  Wooltton  (a).  If  £2000,  the  property  of  the  petitioner,  had  been 
received  by  Ralph  Westropp  Brereton,  in  one  sum,  shortly  before 
the  execution  of  the  will,  I  presume  it  would  not  be  denied  that  the 
jointuring  power  was  well  executed  by  the  will.  If  this  be  so, 
it  is  difficult  to  understand  why  the  jointuring  power  could  not  be 
duly  executed,  if  the  £2000  was  received  in  annual  or  half-yearly 
sums,  for  some  years  previous  to  the  execution  of  the  will.  If  por- 
tions of  the  fortune  of  the  petitioner,  received  from  time  to  time  by 
Ralph  Westropp  Brereton,  previous  to  the  execution  of  the  will, 
from  other  sources  than  the  rents  of  the  lands  of  Ardgart,  would 
have  authorised  Ralph  Westropp  Brereton  to  charge  £100  a-year 
for  the  jointure  of  the  petitioner,  for  every  £1000  of  such  fortune 
60  received,  it  is  difficult  to  understand  why  the  fact  of  such  sums 

(a)  2B1UTOW8,  1136. 


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Ill 


having  been  received  in  respect  of  the  rents  of  the  lands  of  Ardgart 
can  make  any  difference.  The  power  authorised  Ralph  Westropp 
Brereton,  when  in  possession,  to  charge  the  lands  with  a  jointure 
for  such  wife  or  wives  as  he  should  many,  not  exceeding  £100 
a-year  for  every  £1000  sterling  which  he  should  actually  and  bona 
fide  receive  with  such  woman  or  women  as  he  should  marry.  I  do 
not,  of  coarse,  intend  to  intimate  an  opinion  that,  if  I  am  mistaken 
on  the  first  point,  and  that  Ralph  Westropp  Brereton  was  entitled  to 
charge  £200  a-year  jointure,  by  the  deed  of  the  11th  of  July 
1846,  valoing  the  interest  in  Ardgart,  at  that  date,  at  £2000,  the 
annual  receipts  of  the  rents  of  Ardgart  would  have  justified  the 
charge  of  a  further  jointure  in  respect  of  such  receipts :  nor  do  I 
express  an  opinion  that,  if  £2000  in  cash,  or  in  the  funds,  had  been 
given  to  Ralph  Westropp  Brereton,  on  his  marriage,  he  could  first 
charge  a  jointure  in  respect  of  the  £2000,  and  then,  at  the  end 
of  several  years,  charge  a  further  jointure  in  respect  of  the  interest 
or  dividends  received.  In  holding  the  will  a  due  execution  of  the 
power  to  jointure,  I  assume  that  the  conveyance  of  Ardgart,  by  the 
settlement  of  the  11th  of  July  1846,  did  not  authorise  the  elercise 
of  the  jointuring  power  by  that  settlement. 

To  prevent  the  expense  of  proceeding  with  the  reference  which 
it  will  be  necessary  to  direct,  and  in  order  to  allow  the  opinion  of 
the  Court  of  Appeal  tp  be  taken  at  once  on  the  three  questions  of 
Law,  I  shall  declare  on  the  order  my  opinion  on  the  first  and  second 
questions,  and  I  shall  also  declare  that  if  Ralph  Westropp  Brereton 
actually  and  bona  fide  received  out  of  the  lands  of  Ardgart,  previous 
to  the  execution  of  his  will,  the  sum  of  £2000,  the  jointuring 
power  was  well  executed  by  the  wilL  If  it  should  appear,  on  the 
reference,  that  a  less  sum  was  received,  the  jointure  should  be  reduced 
accordingly ;  but,  I  presume,  when  the  legal  questions  are  finally 
decided,  the  parties  can  ascertain  the  amount  received,  without  pro- 
ceeding with  the  reference.  It  will  be  necessary,  when  directing 
the  reference,  also  to  direct  a  reference  in  respect  of  the  allegation 
in  the  petition,  that,  upon  the  occasion  of  the  petitioner's  marriage, 
she  gave  to  the  said  Ralph  Westropp  Brereton  £200  in  cash,  and 
much  valuable  plate  and  other  household  effects.    I  doubt  that  the 


1860. 
Rolls. 

BRERETON 
BARRT. 

Judgment, 


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112  CHANCERY  REPORTS. 

plate  or  household  effeots  can  be  taken  into  consideration,  but  that 
question  can  be  more  satisfactorily  decided  when  the  value  is 
known. 

As  a  reference  is  directed  bj  the  order,  the  costs  must  be  reserved. 
Judgment.      ^  ^^^^  make  the  following  order  : — 

Order,  ^^  ^  ordered  and  declared,  bj  the  Right  Hon.  the  Master 

OF  THE  Rolls,  that  the  conveyance  of  the  lands  of  Ard- 
gart,  to  which  the  petitioner  was  entitled  for  her  life,  at 
the  time  of  the  execution  of  the  marriage  settlement  bear- 
ing date  the  11th  of  July  1846,  to  her  late  husband,  Ralph 
Westropp  Brereton,  by  the  said  settlement,  for  his  life, 
if  she  should  so  long  live,  with  a  limitation,  by  the  said 
settlement,  to  the  petitioner,  for  her  life,  if  she  should  sur- 
vive the  said  Ralph  Westropp  Brereton,  did  not  authorise 
the  exercise  of  the  jointuring  power  vested  in  the  said 
Ralph  Westropp  Brereton,  under  the  deed  of  the  31st  of 
January  1818,  in  the  petition  mentioned,  having  regard  to 
the  terms  of  the  said  jointuring  power.  And  it  is  further 
ordered  an^  declared,  that  the  several  deeds,  dated  the  22nd 
day  of  November  1850,  did  not,  nor  did  any  of  them,  amount 
to  a  confirmation  or  re-grant  by  Arthur  Brereton,  party  to 
said  deeds,  of  the  jointure  purporting  to  be  appointed  to  the 
petitioner  by  the  said  deed  of  the  1 0th  of  July  1846.  And 
it  is  further  ordered  and  declared,  that  if  Ralph  Westropp 
BrereUm,  before  the  execution  of  his  ^ill,  dated  the  18th 
day  of  March  1855,  actually  and  bona  fide  received  the 
sum  of  £2000,  or  upwards,  after  all  outgoings,  opt  of  the 
rents  of  the  said  lands  of  Ardgart,  the  jointuring  power  of 
the  deed  of  the  31st  of  January  1818  was  duly  executed 
by  the  said  will.  But  it  not  clearly  appearing  what  the 
amount  of  said  rents,  so  received  1\rj  the  said  Ralph 
Westropp  Brereton,  was,  it  is  further  ordered,  that  it  be 
referred  to  William  Brooke,  Esq.,  the  Master  of  this  Court, 
in  rotation,  to  inquire  and  report  the  net  amount  of  the 
rents  of  the  said  lands  of  Ardgart  actuaUy  and  Uma  fide 


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CHANCERY  REPORTS.  113 

received  by  the  snid  li<i1ph  Westropp  BreretOD,  from  the        I860.  , 
11th  of  Jiiij  1846,  being  the  date  of  the  said  marriage     ^ r-^ 

BHiEAETOIl 

settlement,  down  to  the  18th  of  March  1855,  the  date  of  the 
said  will,  after  all  outgoings ;  and  also  to  inquire  and  report  babry. 
the  net  amount  of  the  rents  of  the  said  lands  of  Ardgart,  'oi^. 
actually  and  h(ma  fide  received,  by  the  said  Ralph  West- 
ropp Bi-ereton,  from  the  date  of  the  said  will  to  the  date 
of  the  death  of  the  said  Ralph  Westropj)  Broreton,  after 
all  outgoings ;  but  the  Court  doth  not  at  present  d^ide 
whether  or  not  the  rents  received  by  Ralph  Westropp 
Brereton,  after  the  date  of  his  will,  are  to  be  taken  into 
calculation.  And  the  petitioner  having  alleged,  by  the  28th 
paragraph  of  the  petition,  that,  upon  the  occasion  of  her 
marriage,  she  gave  to  the  said  Ralph  Westropp  Brereton 
£200  in  cash,  and  much  valuable  plate,  and  other  house- 
hold  effects,  it  is  further  ordered,  that  it  be  referred  to  the 
Master  to  inquire  avid  report  whether  the  said  petitioner 
did,  upon  the  occasion  of  her  marriage,  and  at  what  date 
particularly,  give  to  the  said  Ralph  Westropp  Brereton 
£200,  or  any  other  and  what  sum,  and  whether  she  gave 
to  the  said  Ralph  Westropp  Brereton,  on  the  occasion  of 
her  marriage^  and  at  what  date  particularly,  any  plate  and 
household  effects,  and,  if  so,  the  value  and  particulars  of 
AQch  leqtectively :  and  the  Court  doth  reserve  further 
order,  and  the  question  of  costs. 


VOL.  llr  Iff 


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114  CHANCERY  REPORTS. 


1860. 
RottM. 


^    ,  ,  SCOTT  V.  SCOTT. 

May  1,  4. 

Aw.  7. 

Bequest  of  the  Maby  Keabnet,  being  entitled  to  two  soma  of  £400  and  £100 
interest  of 

£500  to  A  for  charged  on  lands,  and  being  possessed  of  certain  Waterford  Bridge 
lifb,  and  as  to 

the  principi^,  debentures,  and  other  property,  made  her  will  on  the  24th  of  De- 
cease of  A,  cember  1882,  bj  which  she  desired  that  all  her  debts  should  be 
oUieM>ropertY  P^^  ^^  ^^^^  ^  convenient  after  her  decease;  and  she  devised  aU 
meTXitf  m2y  ^^^  property  to  two  trustees,  upon  trust  to  pay  certain  legacies, 
^^^^1^  Y^^  and  upon  further  trust,  to  pay  **  to  my  sister  Catherine  Kearney 

entitled  nnto,  the  interest  of  £500  to  which  I  am  entitled  under  my  father's 
in  trust,  for  the 

use,  benefit  settlement  (and  which  interest  is  now  paid  to  me  by  the  repre- 
andbehoofof"  t—  /  r 
Band  her  chil-  sentativcs  of  my  late  brother  William  Kearney  and  Mr.  Alcock 
dren,    "  with- 
out the  control  of  Wilton),  for  and  during  the  term  of  her  natural  life;  and^as 

dling  of  her      to  the  principal  thereof,  from  and  after  the  decease  of  my  sister, 

to'bepiid^hi  *^^  as  to  all  other  property  belonging  to  me,  that  I  may  die 

my  stdd^^us^  scised  and  possessed  of  or  entitled  unto,  in  trust  and  for  the  use, 

SSrSsore^n  ^^^^^  ^^^  behoof  of  my  niece  Hannah  (Maria)  Scott  and  her  chil- 

^U   that"^  ^^^^^  without  the  control  or  intermeddling  of  her  husband,  and  to  be 

took  a  life  paid  at  such  times  and  in  such  manner  as  my  said  trustees  shall 

interest  in  all  ' 

the  piroperty,  in   their  discretion  think  fit."    Mary  Kearney  died  shortly  afW- 

with    remain-  '  "^ 

der  to  all  her  wards,  leaving  her  sister  Catherine  Kearney  and  her  niece  Hannah 

children   bom 

in  A's  lifetime,  Scott  surviving.    Hannah  Maria  Scott  had,  at  the  death  of  the 

before     and 

after  the  death  testatrix,  three  children,  and  she  had  four  children  born  after  the 

^12.  death  of  the  testatrix.     Hannah  Maria  Scott  died  on  the  16th  of 

Statement.      -A-Ugust  1858;  Catherine  Kearney  died  in  November  1858.    The 

interest  of  the  £500  was  paid  to  Catherine  Kearney  during  her 

life,  and  the  interest  of  the  debentures  was  paid  to  Hannah  Maria 

Scott  during  her  life. 

The  petition  was  filed  by  James  Sheppard  Scott,  one  of  the 

children  of  H.  M.  Kearney,  bom  at  the  death  of  the  testatrix; 

and  the  question  now  disdussed  at  the  hearing  was,  what  interest 


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CHANCERY  REPORTS. 


115 


Hannah  M.  Scott  took  in  the  £500  charge  and  Waterford  Bridge 
debentures  ? 

Mr.  Brewster,  Mr.  Blake,  Mr.  Leslie  and  Mr.  A.  Keogh,  for 
the  petitioners,  and  the  children  of  H.  M.  Scott,  born  at  the  death 
of  the  testatrix. 

H.  M.  Scott,  and  the  children  born  at  the  death  of  the  testatrix, 
took  as  joint  tenants:  WtldPe  e(ue(a).  The  rule  in  WikTs  case 
was  modified  in  Crockett  v.  Crockett  (b) ;  Audsley  v.  Horn  (c). 
But  there  is  nothing  in  this  will  to  show  an  intention  that  the 
parent  should  take  only  a  life  estate.  The  words  are,  *'to  be 
paid  at  such  time  and  in  such  manner  as  my  trustees  shall  in  their 
discretion  think  fit"  To  whom  was  it  to  be  paid  ?  To  Hannah 
M.  Scott,  and  her  children.  They  took  eo  instanti  at  the  death 
of  the  testatrix.  It  was  then  that  the  discretion  of  the  trustees 
was  to  be  exercised,  and  therefore  the  objects  to  take  were  to  be 
ascertained  then:  2  Jarman  on  Wills,  pp.  335,  336;  Gordon  v. 
Whieldon  (d) ;  Buffar  v.  Bradford  (e) ;  Paine  v.  Wagner  (f)  ; 
Bustard  v.  Saunders  (^) ;  Sutton  v.  Tone  (A) ;  Mason  v.  Clarke  (t) ; 
De  Witte  v.  Be  Witte  {k) ;  Cator  v.  Cator  (/). 


1860. 
Rolls. 

' V ' 

SCOTT 

V. 
SCOTT. 

Argument, 


Mr.  Sullivan  and  Mr.  Arthur  Close,  for  the  children  bom  after 
the  death  of  the  testatrix. 

H.  M.  Scott  took  a  life  interest,  with  a  power  of  appointment 
among  all  her  children,  whether  bom  before  or  after  the  death 
of  the  testatrix,  or  she  took  a  life  interest  with  remainder  to  h^ 
children  as  tepants  in  common :  Audsley  v.  Horn  (m) ;  Ward  v 
Gr(^  (n).  The  trustees  are  to  pay  the  legacy  to  the  separate  use 
of  H.  M.  Scott.  That  has  been  held  to  be  inconsistent  with  the 
parent    taking    with    her    children    as   joint    tenant:    Morse    v. 

(o)  6  Rep.  17.  (fi)  2  Ph.  563. 
(c)  26  Bear.  195 ;  on  ^peal,  6  Jar.,  N.  S.,  205. 

(<0  11  Bear.  170.  (e)  2  Atk.  220. 

(i)  12  Sim.  184.  (g)  7  Bear.  92. 

(A)  6  Jut.  234.  (0  17  Bear.  126. 

(A)  11  Sim.  41.  (0  14  Bcay.  463. 

(m)  Ubi  sup,  (n)  Uhi  sup. 


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116 


CHANCERY  REPORTS. 


18Q0. 
BoUs. 


Arpment, 


Nov.  7. 
Judgment, 


Morse  (a) ;  Mastm  ▼.  Clarke  (6) ;  Vauffhan  y.  The  MarquU  of 
Headford  (e) ;  Cratlford  v.  Trotter  {d)i  French  v.  French  {e). 
As  to  the  £500,  in  which  a  life  interest  was  beqeathed  to  Catherine 
Kearney,  it  is  clear  thiit  all  the  children  born  at  the  period  of 
distribution,  t.  e^  the  death  of  Catherine  Keamej,  are  entitled: 
Jeffery  v.  De  Vitre  (f) ;  and  the  same  construction  must  be  put 
on  the  word  *'  children,"  in  respect  of  the  bequest  of  the  Waterford 
debentures,  which  was  immediate,  without  the  intervention  of  a 
preceding  life  estate :  Ridgeway  v.  MunkiUrieh  (g)^ 

Mr.  Serjeant  Lawion  and  Mr.  Tandy^  for  the  trustees. 

The  Masteb  of  tub  Rolls. 

The  questioa  which  arises  in  this  case  is,  the  construction  to 
be  put  on  the  will  of  Maiy  Kearney  deceased,  dated  the  24th  of 
December  1838.  Mary  Kearney  was  possessed  of  a  sum  of  £400 
and. of  another  sum  of  £100,  which  constitute  the  £500  in  her 
will  mentioned,  and  was  also  possessed  of  certain  Waterford  Bridge 
debentures;  and  being  so  possessed,  she  luade  her  will,  bearing 
date  the  24th  of  Decemb^  1833,  wheioby  she  devised  all  her  pro« 
perty  to  two  trustees,  on  the  trusts  therein  mentioned;  and  after 
certain  trusts  not  material  in  the  present  case,  the  will  ^proceeded 
to  declare  the  trusts  thus :  ^*  and,  to  my  sister  Catherine  Eeamey, 
the  interest  of  £500,  to  which  I  am  entitled  under  my  father's 
settlement  (and  which  interest  is  now  paid  to  me  by  the  repre- 
sentatives of  my  late  brother  William  Kearney,  and  Mr.  Alcock 
of  Wilton),  for  and  during  the  term  of  her  natural  life ;  and  as 
to  the  principal  thereof,  from  and  after  the  decease  of  my  sister, 
and  as  to  all  other  property  belonging  to  me,  that  I  may  die 
seised  and  possessed  of,  or  entitled  unto,  in  trust  and  for  the  use, 
benefit  lUid  behoof  of  my  niece  Hannah  Scott  and  her  children, 
without  the  control  or  intermeddling  of  her  husband,  and  to  be 


(a)  Sim.  485. 
(c)  10  Sim.  639. 
(e)  11  Sim.  257. 


(*)  17  Beav.  126. 
(J)  4  Mod.  361. 
09  24  Beav,  296, 


(si)  I  Dr.  &  War.  84. 


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117 


paid  at  soch  times  and  in  sach  manner  as  my  said  trustees  shall 
in  their  discretion  think  fit.** 

The  testatrix  died  a  few  days  after  the  date  of  her  will,  leaving 
her  sister  the  said  Catherine  Kearney;  and  her  niece  Hannah 
Maria  Scott  (in  the  will  called  Hannah  Scott),  her  surviving. 
Hannah  Maria  Scott  had,  at  the  death  of  the  testatrix,  three  chil- 
dren ;  namely,  the  petitioner  James  Sheppard  Scott,  Joseph  Scott 
and  Elizabeth  Maria  Scott ;  but  she  had  four  more  diildren^  namely, 
Hannah  Maria  Kearney  Scott,  Sheppard  Thomas  Scott,  Josephine 
Mary  Scott,  and  Gilbert  Thomas  Scott,  born  after  the  death  of 
tlie  testatrix.  Hannah  Maria  Scott  died  on  tlie  I6th  of  August 
1858,  in  the  lifetime  of  the  said  Catherine  Kearney,  and  the 
said  Catherine  Kearney  died  in  November  1858.  The  interest 
o(  the  £500  was  paid  to  Catherine  Kearney  in  her  lifetime,  and 
the  interest  of  the  Waterford  Bridge  debentures  was  paid  to 
Hannah  Maria  Scott  in  her  lifetime,  on  the  assumption  that  she 
was  entitled  to  such  int^ivst  for  her  life,  and  that  none  of  her 
children  had  any  claim  during  her  life ;  but  of  course  that  cannot 
affect  the  question  which  arises  on  the  construotiou  of  the  will. 

Counsel  on  the  part  of  the  petitioner  contended  that  the  peti* 
tioner,  and  his  brother'  Joseph  Scott  and  his  sister  Elizabeth 
Scott,  who  were  the  only  children  bom  in  the  lifetime  of  the 
testatrix,  became  entitled,  on  her  death,  with  their  mother  Hannah 
Maria  Scott,  to  the  Waterford  Bridge  debentures,  either  as  joint 
tenants  <Nr  tenants  in  common;  and  Counsel  for  the  petitioner 
also  contend  that  the  petitioner,  and  his  said  brother  and  sister, 
bom  in  the  lifetime  of  the  testatrix,  became  entitled  to  the  £500 
on  the  death  of  Catherine  Keamey,  their  said  mother  having 
died  in  the  lifetime  of  Catherine  Keamey  t  and  they  contend 
that  the  four  children  bom  after  th»  death  of  the  testatrix  are 
entitled  to 'no  share  either  of  the  Waterford  Bridge  debentures  or 
of  the  £500. 

I  do  not  concur  in  the  argument  of  the  petitioner's  Counsel 
that,  aecording  to  the  true  construction  of  the  will  of  Mary  Kearney, 
the  petitioner  and  his  brother  and  sister,  born  in  the  testatrix' 
lifetime,  are  entitled  to  the  £500,  to  the  exclusion  of  the  four 


I860. 
RoU$. 

SCOTT 

9. 
SCOTT. 


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other  children  bom  during  the  lifetime  of  Catherine  Kearney^ 
the  tenant  for  life.  Mr.  Jarman,  in  his  Treatise  on  Wills^  2nd  ed., 
vol  2,  p.  127,  states : — *'  Where  a  particular  estate  or  interest  is 
carved  oat,  with  a  gift  of  er  to  the  children  of  the  person  taking 
that  interest,  or  the  children  of  any  other  person,  such  gift  will 
embrace  not  only  the  objects  living  at  the  death  of  the  testator, 
but  all  who  may  subsequently  come  into  existence  before  the 
period  of  distribution.  Thus,  in  the  case  of  a  devise  or  bequest 
to  A  for  life,  and,  after  his  decease,  to  the  children  of  B,  the 
children,  if  any,  of  B,  living  at  the  death  of  the  testator,  together 
with  those  who  happen  to  be  born  during  the  lifetime  of  A,  the 
tenant  for  life,  are  entitled,  but  not  those  who  may  come  into 
existence  after  the  death  of  A."  The  cases  referred  to  by  Mr. 
Jarman  are  in  accordance  with  his  statement  of  the  law.  Now 
without  reference  to  the  question  which  arose  in  Audshy  v.  Hom^ 
Ward  V.  Crray^  and  cases  of  that  class,  to  which  I  shall  just 
now  refer,  I  do  not  understand  why  any  of  the  seven  children 
in  this  case,  all  of  whom  were  bom  during  the  lifetime  of 
Catherine  Kearney,  the  tehant  for. life,  are  to  be  excluded,  so  far 
as  relates  to  the  £500. 

If  Hannah  Maria  Scott  had  survived  Catherine  Keamey,  it  would 
have  been  necessary,  witjh  reference  to  this  sum  of  £500,  to  have 
considered  Audsley  v.  Hom^  Ward  v.  Gray^  and  that  class  of  cases, 
in  order  to  determine  whether  Hannah  Maria  Scott  would  have 
been  entitled  to  a  life  interest  in  the  entire  of  the  £500 ;  but,  as  she 
died  in  the  lifetime  of  Catherine  Keamey,  the  decision  of  that  ques- 
tion would  have  been  unnecessary,  so  far  as  the  bequest  of  the  £500 
is  concemed ;  and  I  do  not  understand,  having  regard  to  the  cases 
referred  to  by  Mr.  Jarman,  in  the  passage  I  have  read  from  his 
work,  why  you  are  to  exclude  any  of  the  seven  children,  so  far  as 
relates  to  the  bequest  of  the  £500,  they  all  having  been  bom  in  the 
lifetime  of  Catherine  Keamey,  and  before  the  period  of  distribution* 
It  will,  however,  I  think,  be  necessary  to  decide  the  question  which 
arose  in  Audsley  v.  i7on»,  and  that  Class  of  cases,  as  the  construc- 
tion to  be  put  on  the  will,  as  to  the  £500,  may  assist  in  the 
constmction  of  the  o^her  bequest.     With  respect  to  the  Waterford 


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Bridge  debentures,  the  question  which  arises  is,  in  some  respects, 
different  from  that  which  arises  as  to  the  £500.  Where  there  is  an 
immediate  gift  to  children  (t.  e.,  a  gift  to  take  effect  in  possession 
immediately  on  the  testator's  decease),  it  comprehends  onlj  the  chil- 
dren living  at  the  testator's  decease :  Jarman  on  Wills^  2nd.  ed., 
vol.  2,  pp.  126,  127.  If,  therefore,  as  to  the  Waterford  Bridge 
debentures  (the  gift  of  which  was  preceded  by  no  life  interest  in 
Catherine  Kearney),  Hannah  Maria  Scott  and  her  children  were  to 
take  either  as  joint  tenants  or  tenants  in  common,  the  four  children 
bom  afler  the  death  of  the  said  testatrix  would  be  excluded ;  and  it 
is,  therefore,  necessary,  as  to  those  debentures,  to  consider  the  ques- 
tion which  has  been  argued  before  me,  as  to  the  construction  of  the 
general  bequest  (which  included  those  debentures),  "for  the  use, 
benefit  and  behoof  of  my  niece  Hannah  Scott,  and  her  children^ 
without  the  control  or  intermeddling  of  her  husband." 

It  is  impossible  to  reconcile  all  the  cases,  as  to  the  effect  of  a 
bequest  to  a  parent,  and  his  or  her  children.  One  of  the  most 
recent  cases  on  the  subject  is  Audsley  v.  Horn  (a).  In  that 
case,  the  words  of  the  will  were : — *'  I  leave  Hansard-place  to  my 
daughter  Mary  Rossiter,  during  her  life,  and,  at  her  death,  to  her 
daughter  Amelia  RoMsUer  and  Amelia  Roseiter'f  children ;  but,  if 
they,  should  die  without  issue,  in  that  case,  the  property  to  be  divi- 
ded  between  William  Hansard,  John  Tuttle  and  John  Larry  and 
Maria  Larry."  Amelia  had  no  children  at  the  date  of  the  will,  or 
at*the  date  of  testator's  death,  or  at  the  date  of  the  death  of  Mary 
Rossiter ;  and  it  was  contended  that  the  bequest  was  either  a  qua$i 
estate  tail  in  Amelia  Rossiter,  or  that  it  was  an  estate  to  Amelia 
and  her  children  as  joint  tenants ;  and  that,  upon  that  assumption, 
as  there  was  no  child  alive  at  the  time  when  the  gift  took  effect, 
Amelia  took  the  whole  absolutely.  Sir  J;  Romilly,  in  giving  judg- 
ment, stated,  amongst  other  matters,  as  follows : — '*  Upon  a  review 
of  the  whole  of  the  cases  upon  the  subject,  I  think  that,  setting 
aside  some  contradictory  decisions,  which  it  is  not  very  easy  to 
reconcile,  the  tendency  in  modern  decisions  has  been,  in  cases  like 
the  present,  to  hold  that,  in  personalty,  the  bequest  gives  an  interest 

(a)  26  Bear.  185. 


1860. 
Rolls. 

SCOTT 

V. 
SCOTT. 

Judgment. 


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for  life  to  the  mother,  with  an  interest  in  remainder  to  the  children. 
Thus,  in  Crawford  v.  Troiier,  a  bequest  to  one  and  her  children 
was  held  to  give  an  interest  for  life  to  the  mother,  with  remainder  to 
her  children  ;  and,  in  Morse  v.  Morse^  a  bequest  of  a  sum  of  monej 
to  the  testator's  daughter,  and  her  children,  was  held  to  give  an 
interest  for  li(b  in  the  daughter,  with  remainder  to  all  her  children. 
I  certainly  cannot  say  that  oases  are  not  to  be  found  in  the  books 
which  it  is  not  easy  entirely  to  reconcile  with  this  view  of  the 
subject;  but  I  think  that  the'vidw  I  have  stated  is  that  wliich  is 
most  consistent  with  the  line  of  modem  cases^  and  their  tendency, 
and  gederally  most  in  accordance  with  the  spirit  and  intention  of 
the  testator  in  those  cases.  I  also  find  that  I  have,  npon  two  former 
occasions,  adopted  the  same  view,  viz.,  in  DawMon  v.  Bourne^  and 
in  Jeffery  v.  2>e  VitroT  The  decision  in  AucUey  v.  Horn  was 
affirmed  on  appeal  (b). 

In  th^  case  of  Ward  v.  Gray  (a),  reported  in  the  same  volume  of 
Bemoanj  a  question  arose  as  to  the  effect  of  a  bequest  to  a  mother 
and  her  childrai.  The  bequest  in  the  fourth  codicil  in  that  case 
was,  to  '^Mrs.  Horatia  Ward  and  her  children;"  and  there  was  a 
[  bequest  in  the  fifth  codicil  to  "  Mrs.  Horatia  Ward  and  her  family." 
It  is  strange  that,  in  that  case,  Audsley  v.  Horn  was  not  referred 
to;  nor  does  Sir  J.  Romilly  appear  to  have  recollected  it.  In 
giving  judgment,  p.  493,  he  said : — "  There  is  still  one  remaining 
question  ptit  to  me  by  this  special  case,  namely,  what  is  the  nature 
of  the  interest  taken  by  the  plaintiff  (I^Irs.  Horatia  Ward)  and  her 
children  in  this  bequest  ?  I  cannot  find  any  distinct  authority  cm 
this  subject;  and,  following  the  opinion  of  Lord  Cottenham,  in 
Croebeti  V.  Orookeity  which  this  case  closely  resembles,  I  am  of 
opinion,  first,  that  the  plaintiff  and  her  children  do  not  take  as 
joint  tenatits ;  and  next,  adopting  one  of  the  alternatives  suggested 
by  the  Lord  Chancellor,  I  am  of  opinion  that  the  plaintiff  takes  an 
estate  for  Hfe  in  the  fund,  with  a  power  of  appointment  amongst  her 
children,  and,  in  default  of  appointment,  and  subject  to  her  life 
estate,  the  children  take  the  estate  equally  amongst  them ;  and  I 
will  answer  the  case  accordingly."    Now  it  does  not  appear  to  me 

(a)  29  L.  J.,  N.  S.,  Ch.,  ao.  (&)  26  Bear.  485. 


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BolU. 

8GOTT 

V. 
SCOTT. 


CHANCEBT  B£PO|tTS.  121 

to  be  materm,  in  t\ie  pfesept  c§8«,  to  C9iifii4dr  wl^ether  %\^e  view 
taken  in  At^dsff^^  v.  Bam^  pv  in  Ifiw^  v.  Grqy,  is  ^he  cor^t  yiew ; 
because,  aecordipg  to  the  op^liQn  qf  S|f  J.  9on^^J,  in  t^e  latter 
cf^  t))e  power  was  tfl  appoint  ^n^^gst  tbe  cbildrei) ;  and,  as  tbe 
wil)  of  Papnab  ^aria  Scott  exploded  many  qf  t)ie  ftbildren,  it  woiild  4udgmnt, 
bave  been  an  invalid  appqintpient ;  an^,  tberefore,  I  apprehend^ 
aocordipg  to  either  pf  tbe  decisjons  of  Sif  J.  ]|oi]c^i%,  (he  seven 
children  in  the  present  case  wqpld  take. 

Tl^e  qbseryatioi^s  of  Sir  J-  Bon^iPy,  in  Ma^of^  ?.  Clfifke  (a),  do 
not  appe^  very  re<M>ncileable  with  War^  y*  Grxij^f  as  tl^^F^  were 
children  liying  at  the  dea(h  pf  tUf^  tiesf^r  i^  W(i^4  ^'  (?ray.  I^ 
OroctsU  y.  CfWilutff  (b)  it  was  laid  do^p  by  pprd  Cp^tenbam,  "  that 
in  siich  cas0  (f.i^.,  a  gift  to  A  ^^A^  her  childrei^)  a  very  slight 
ind|catioQ  of  intention  t|ia^  the  children  should  i^t  take  jpiptly  with 
the  mother  has  been  thongfat  sufficient  to  ^^abl^  tbe  Gp^rt  t9  decriee 
a  life  jBstate  to  the  mother,  with  rismainder  to  her  children.^  Now, 
in  the  present  case,  so  far  as  relate  to  tfte  £60Q^  it  is,  I  tbink»  clear, 
for  the  reasons  I  have  already  stated,  that  fpl  the  cbildjren  of 
Hannah  Maria  Scott,  bom  in  the  lifetime  of  Catherine  Kearney 
(t.  €.,  the  sevei)  childrep),  were  entitled  to  to  tbe  £500.  If  this  be 
so,  it  has  been  decided  in  J^ff^  v.  Dt  Viire  (c),  that  where  there 
was  a  bequest  to  a  married  woman,  ''for  the  benefit  of  hefself  and 
such  children  as  she  then  had,  or  might  thereafter  have,  by  her  then 
hosband,  free  from  the  control  of  her  husband,'^  the  married  woman 
took  for  life,  with  remainder  to  such  children.  Sir  J.  BomiUy,  in 
giving  judgment,  said  **  all  the  childi:!en  were  ii^tevded  to  take;  and 
this  0an  only  be  effect^  by  giving  a  )ife  i/itercat  jto  tb^  mothpr,  and 
the  fond  afterwards  to  the  children.^  The  argument  of  the  defend- 
^Bjt's  Gppnsel,  which  was  in  effect  adopted  by  Sir  <^.  BomiHy,  ex- 
plains the  grounds  of  the  decision;  and  those  grounds  are  just  as 
applicable  to  the  case  of  children  bom  after  the  death  of  a  testator, 
but  within  the  lifetime  of  a  tenant  for  life  of  the  fund.  In  the 
present  case,  if  it  b  clear,  which  I  apprehend  it  is,  that,  as  to  the 
bequest  of  the  £50.0  after  the  death  of  Catherine  Kearney,  it  included 


(a)  17  Bear.  126.  (6)  2  Phil.  555. 

(c)  24  Beay,  296. 
VOL.  11.  16 


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* , * 

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Judgment. 


children  born  after  the  death  of  the  testatrix,  and  during  the  lifetime 
of  the  said  Catherine  Kearney,  it  appears  to  me  that  the  case  I  have 
last  referred  to  would  apply,  and  that  Hannah  Maria  Scott  would 
have  been  entitled  to  the  interest  of  the  £500  for  her  life,  in  the  event, 
which  did  not  take  place,  of  her  surviving  the  said  Catherine,  virith 
remainder,  as  to  ihi^  corpus  of  the  £500  (after  the  death  of  Catherine 
and  Hannah),  to  Hannah's  children.  I  may  further  observe  that  the 
bequest  to  Hannah  Maria  Scott,  being  without  the  control  of  her 
husband,  is  in  itself,  according  to  one  case,  an  indication  of  inten- 
tion that  she  should  take  for  life.  The  cases,  however,  on  this 
point  conftict:  Jarman  on  WilU^  2nd  ed.,  vol.  2,  p.  335.  In 
either  view  of  the  case,  therefore,  whether  on  the  authority  of  the 
cases  referred  to  by  Mr.  Jarman^  in  the  passage  I  have  read,  or  on 
the  authority  of  the  cases  of  Audsley  v.  Horn  and  Ward  v.  Ort^f^ 
ahd  the  case  in  24  Beavan^  the  seven  children  are  entitled  to  the 
£500.  K  the  seven  children  are  entitled  to  the  £500,  there  are  many 
cases  which  establish  that  the  same  construction  should  be  given  to 
the  general  bequest,  which  included  the  Waterford  Bridge  deben- 
tures. It  would,  I  think  be  difficult  to  hold  that,  as  to  the  £500, 
Hannah  Maria  Scott  was  entitled  for  her  life,  if  she  survived 
Catherine  Kearney,  with  remainder,  as  to  the  corpus  of  the  fund,  for 
her  children,  and  that  the  same  words  should  receive  a  different  con- 
struction as  to  the  general  bequest.  I  am,  therefore,  of  opinion  that 
the  seven  children  are  entitled  both  to  the  £500  and  to  the  deben- 
tures. 

I  sent  in  an  order,  shortly  after  the  Court  rose,  last  Sittings,  de- 
claring very  precisely  in  the  order  the  rights  -of  the  parties ;  but  I 
have  now  stated  the  grounds  of  my  decision,  as  it  may  be  satis- 
factory to  the  parties.  If  there  is  any  desire  to'  appeal,  I  shall  have 
4he  date  of  the  order  changed  to  this  day. 


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1860. 
RolU. 


JOYCE  V.  BUTTON.  ,     ,  „ 

June  \,  2. 

Nov.  2. 

The  facts  of  this  case  appear  sufficiently  from  the  judgment.     The  Bj  a  marriage 

setileinent, 
question  was,  whether  a  post-nuptial   settlement,  of  the  l8th  of  lands  were 

January  1850,  was  voluntary  or  for  valuable  consideration?  trustees,  to  the 

separate  use  of 

Mr.  Sullivan  and  Mr.  G.  O.  Malley,  for  the  petitioners.  ^J  m-^^k, 

Mr.  Sherlock  and  Mr.  Laughnan,  for  the  respondent.  iSwbSSi^.'  ^^ 

should  soirive 
Pulverioft  V.  Pulvertofi  (a) ;    Heap  v.   Tongue  (b);    Blake  v.  ^^^' ^^  ^ 

French  (c);  Roe  v.  Mitton(d)\  SeoU  v.  Bell{e);  Ball  v.  Bum-  after  the  death 

of  the  sorviYor 

ford  (f)  ;    Clerk  v.  Netileship  (g)  ;    Currie  v.  Nind  (A)  ;   Goodright  of  A  and  B,  in 

tmst  to  conyey 

V.  Moses  (t)  ;    Parker  v.  Carter  (A)  ;    BuUerfield  v.   Heath  (I) ;  to  the  child  or 

Milliken  v.  irt<ie{(m);  Zate^  v.  Warren  {n)\  Pitzmaurice  v.  Sad-  marriage,  as  A 
...  V.  .^   ,  and B should, 

^r(o),  were  cited.  5^  deed  or 

win,  appoint, 
and,  in  de&tdt 
The  Master  of  the  Rolls.  of  appoint- 

The  petition  in  this  case  prays  that  a  conveyance,  dated  the  18th  children 

of  December  1850,  made  by  the  father  and  mother  of  the  petitioners,  -^  de^uiU  of 

issue,  to  the 
suryiyor  of  A  and  B.  There  was  issae ;  and  bj  deed  reciting  that  A,  in  order  to 
farther  the  prospects  in  life  of  the  children,  had  consented  to  assign  her  Ufe  estate  for 
the  benefit  of  the  children,  and  that  B,  for  the  like  purpose,  agreed  to  assign  his  re- 
yersion,  in  case  he  should  snryiye  his  wife.  A,  for  the  considerations  aforesaid,  and 
lOs.,  conyeyed  her  life  interest  to  trustees,  in  trust  to  reoeiye  the  rents  during  the  life 
of  A  and  B,  and  applj  them  for  the  benefit  and  maintenance,  ftc,  of  the  chudren,  in 
such  manner  as  the  trustees  might  deem  sufficient.  And  it  was  agreed  that  the 
trustees  should  haye  full  power  and  control  oyer  the  proper^  during  the  life  of  A 
and  B,  iree  from  the  control  or  intermeddling,  debts,  &c,  which  at  anj  time  miffht 
haye  afiected  the  estate  of  A  and  B ;  and  B  coyenanted  that,  if  he  should  sunriye  his 
wife,  he  would,  if  called  on  by  the  trustees,  assign  his  estate  and  interest  to  the 
trustees,  on  the  said  trusts. — Held^  that  the  children  were  not  within  the  consideration, 
and  could  not  enforce  a  specific  performance  of  B's  coyenant  to  assign  his  interest. 

(a)  18  Yes.  84.  (&)  9  Hare,  104. 

(c)  5  Ir.  Chan.  Bep.  246.  (<0  2  Wils.  356. 

(e)2Ley.  7a  09  I  Pr. in  Chan.  113. 

(g)  2  Ley.  148.  (A)  1  M.  A  Cr.  17. 

CO  2  W.  BL  1019.  (A)  4  Hare,  409. 

(0  15  Bcay.  40a  (m)  5  Ir.  Eq.  Bep.  396. 

(«)  6  Ir.  Bq.  Bep.  299.  (o)  9  Ir.  Eq.  Bep.  395. 


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and  by  William  Joyce,  to  the  respondent  John  Hntton,  of  certain 
premises  in  the  city  of  Dublin,  and  also  certain  articles,  dated  the 
3rd  of  December  1850,  and  made  by  and  between  the  petitioners' 
father  and  mother  and  the  said  John  Hutton,  may  be  set  aside  as 
fVaudulent  and  void  as  ttgainst  th^  po^-ht!iptial  settlement  of  the 
I6th  of  January  1850,  under  which  the  petitioners  claim  ;  and  that 
the  fath^  of  the  pfetitiOiliers  may  specifically  perform  the  cove^iaBt 
contaSilied  lA  tfcte  said  post-ttfptial  Settlement ;  or  that  said  convey- 
ance, dfkt^d  the  18di  Vyf  D^ember  1850,  ftnd  said  articles  of  the  3rd 
of  December  1850,  may  stand  as  a  security  for  the  repayment  to 
the  said  John  Button  of  so  much  money,  if  any,  as  shall  be  found 
to  be  fairly  due  to  the  said  John  Hutton,  on  the  taking  of  the  neces- 
sary accounts;  itfnd,  accordingly,  that  afh  account  may  He  taken  of; 
the  sums  payable  to  tlie  'sffid  ^ohn  Hutton,  and  trf  the  rents  tfnd 
pi'^fits  which,  Wfthout  witfti!  defkult^  he  might  haVe  received  out 
of  \he  said  premised,  in  l!he  city  of  Dublin,  ftom  the  18th  c€  Decem- 
bet  1850,  a'nd  fbv  a  re-^Onveyance,  on  "payment  of  such  sum,  if 
any,  as  may  be  due. 

The  petition  is  unnecessarily  prolix,  but  the  material  facts  may 
be  shortly  stated: — Previous  to  the  month  of  April  1831,  Eliza 
Mary  Nicholson  was  possessed,  for  a  long  term  of  years,  of  certain 
premises  in  the  city  of  t)ublin,  and  was  seised  of  other  property  not 
the  subject  of  this  firuit;'atid,  being  so  Seised  and  possessed,  a  settle- 
ment was  executed,  bearing  date  the  5th  of  April  1831,  in  contem- 
plation (k  the  then  iittended  marriage  of  the  said  Eliza  Mary 
Nicholson  with  Thomks  Joyce,  whereby  the  said  'Eliza  Mary 
Nicholson  conveyed  to  the  trustees  of  the  settlement  certain  lands 
and  premises  therein  mentiohecl,  and,  amongst  others,  the  said 
premises  in  the  city  of  Ijlublin,  on  trust  that  they  should  pay  the 
head-rent,  and,  subject  thereto,  for  the  separate  use  of  the  said 
Eliza  Mary,  and,  in  case  Thomas  Joyce  survived  the  said  Eliza  Mary, 
on  trust  to  permit  and  suffer  tHe  said  Xhomas  Joyce  to  receive 
the  rents  for  his  life,  and,  from  and  after  the  death  of  the  survivor 
of  the  said  Eliza  Mary  and  said  Thomas  Jdycis,  on  trust  that  the 
trustees  shdUld'Conv^y  the  said  lands  and  preHnises,  and  said  houses 
in  the  city  of  Dublin,  to  the  child  or  children  of  the  marriage,  in 


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mob  shares  and  proportions  as  the  said  Elisa  Marr^  Nioliolson  and 
Tliottias  Joyce  should,  by  d^ed  or  will,  appoint ;  and,  in  default  of 
appointment,  for  tbe  •obUdren^  sbare  and  ^are  al&e ;  and,  in  de&nlt 
of  isBoe,  the  said  lands,  premises  and  houses  were  to  be  oonreyed 
to  t^  snrviTor  of  the  said  Mary  Niohokon  and  Thomas  Joyoe.       judMem. 

The  muriage  took  efibot,  and  tihiere  irere  nx  children  of  the 
mtHrriage  (the  petitioners),  tfaree  of  whom  are  of  age  and  three  of 
whom  are  minors.  The  petitioners  allege  that  the  petitioners' 
father  having,  about  the  year  1849,  given  himself  up  to  habits  of 
intoxication,  and  the  petitioners  being  apprehensive  that  petitioners' 
father  woold  induce  the  petitioners'  mother  to  join  him  in  some 
securities,  and  thereby  reduce  her  and  the  petitioners  to  indigence, 
a  case  was  laid  before  eminent  Counsel,  on  behalf  of  the  peti- 
tioners, who  gave  "direi^tions  that  if  a  deed  was  executed  by 
'  the  petitioners'  father  and  mother,  conveying  to  new  trustees  their 
several  and  respective  estates  for  life,  in  said  houses,  lands  and 
premises,  the  same  would  be  preserved  for  the  benefit  of  the 
petitioners.  This  allegation  is  denied  by  the  answering  affidavit. 
The  case  and  opinion  would  have  been  important  to  show  the 
hanafidei  of  the  plroeeedings.  It  has  not  been  produced  by  the 
petitioners.  There  are  provisions  in  the  deed  of  the  18th  of 
January  1850,  calculated  to  show  that  this  instrument,  as  alleged 
by  the  respondent,  was  executed  to  cover  the  ptoperQr'from  the 
creditors  of  ihe  fathtar  and  mother  of  the  petitioners ;  and  I  pi^ 
Very  little  attention  to  the  statements  made  as  to  the  case  and 
opinion.  If  that  opinion  was  handed  over  to  the  respondent,  with 
any  other  documents,  iilteirrogatories  might  have  been  exhibited 
on  the  subj^t.  On  the  evidence  before  the  Court,  I  cannot  assume 
that  it  was.  If  it  'be  lost,  the  solicitor  who  prepared  the  same 
might  (if  its  loss  had  been  put  ia  issue  and  sworn  to)  hare  proved 
its  contents.  The  petition  states  that,  in  pursminee  of  sasd 
lirrAngement  (t.  «.,  the  advice  of  Counsel),  a  settlement  bearing 
date  the  16ih  of  January  1850  was  executed,  by  and  between 
thre  petitioners'  father  and  mother,  of  the  first  part,  John  Orpen, 
*t^ho  vrsts  the  surviving  trustee  in  the  settlement  of  1831,  of  the 
second  pan,  and  WiUfaim  Joyce  and  J.  G.  Douglas,  of  the  third 


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CHANCERY  REPORTS. 


1860. 

RolU. 
V. — , ' 

JOTCE 

V 

HUTTON. ' 

Judgment. 


part.  That  deed  (which  is  not  correctly  stated  in  the  petition), 
after  reciting  the  title  to  the  lands  and  premises,  and  the  marriage 
settlement  of  1831,  and  the  names  of  the  children  of  the  marriage, 
recites  as  follows : — **  And  where^  the  said  Eliza  Mary  Joyce,  in 
order  to  farther  the  prospects  in  life  of  her  before-named  children, 
and  also  in  consideration  of  the  sum  of  10s.,  has  consented  and  agreed 
to  assign  and  make  over  her  life  estate  in  the  lands  and  premises 
in  the  before-recited  indenture  of  settlement,  to  trustees,  for 
the  benefit  of  her  children ;  and  the  said  Thomas  Joyce,  for  the 
like  purpose,  and^  also  in  consideration  of  lOs.,  hath  also  agreed 
to  assign  his  reversion  in  the  lands,  tenements  and  premises  in  the 
before-recited  indenture  of  settlement,  in  case  he  should  survive 
the  said  Eliza  Mary  Joyce,  his  wife,  to  trustees,  for  the  like  purpose, 
and  has  consented  to  be  an  executing  party  to  these  presents." 
And  after  such  recitals,  the  indenture  witnessed  that  Eliza  Mary* 
Joyce,  "for  the  consideration  herein  mentioned,"  and  in  consider- 
ation of  10s.  paid  to  her  by  the  trustees  William  Joyce  and  J.  S. 
Douglas,  conveyed  her  life  interest  in  the  said  houses,  lands  and 
premises  (with  the  consent  of  her  husband  Thomas  Joyce)  to  the 
said  trustees,  on  the  trusts  therein  men^oned.  The  petition 
erroneously  states  that  Thomas  Joyce  conveyed.  Thb  is  not  the 
case;  he  only  covenanted  to  convey,  as  I  shall  just  now  state; 
and  it  is  strange  that  there  should  have  been  a  misrepresentation 
of  the  deed,  in  so  important  a  particular,  in  the  petition.  The 
trusts  are  then  declared,  that  the  trustees  *' shall  have,  receive 
and  take  the  rents,  issues  and  profits  of  the  herein-mentioned 
premises,  during  the  life  of  the  said  Eliza  Mary  Joyce  and  Thomas 
Joyce  respectively,  and  apply  the  proceeds  thereof,  after  payment 
of  head-rent  and  renewal  fines  payable  out  of  same,  to  the  use 
and  benefit  and  for  the  maintenance,  clothing,  education  and 
preferment  in  life  of  the  before-mentioned  children,  issue  of  the 
marriage,  lawfully  begotten  on  the  body  of  the  said  Eliza  Mary 
Joyce,  and  to  be  paid  and  payable  at  such  time  and  times,  and 
in  such  manner,  shares  and  proportions  as  they  the  said  William 
Joyce  and  James  Gttrdiner  Douglas  (the  trustees),  their  executors,  &c^ 
may  deem  sufficient  for  the  furtherance  and  benefit  of  the  before- 


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127 


meDtioned  children  of  said  Eliza  Maiy  Jo)rce  and  Thomas  Joyce        1860. 
respectively."    And  it  was  by  said  deed  further  agreed  that  the     ^.  -,  '^' 
said  trustees    should  have  full   power  and  control  oyer  the  said       ^^^^* 
houses,   lands   and   premises  during  the  lifetime  of  Eliza  Mary     button. 
Joyce  and  Thomas  Joyce,  "  free  from  the  control  or  intermeddling,      Judgmenu 
debts  or  engagements,  securities  or  incumbrances,  which  at  any  time 
may  have  affected  the  estate  of  Eliza  Mary  Joyce  or  Thomas 
Joyce,  their  executors,"  &c.     This  provision  looks  like  a  plan  to 
defeat  the  creditors  of  Thomas  Joyce  and  Eliza  Mary  Joyce.     A 
leasing  power  is  then  given  to  the  trustees,  to  demise,  with  or 
without  fine,  provided  that,  if  fines  were  taken,  they  should  be  in- 
vested in  the  funds,  and  the  dividends  applied  on  the  trusts  of  the 
settlement. 

Then  follows  a  covenant  by  Thomas  Joyce,  for  himself,  his  heirs, 
&C.,  with  the  trustees,  that,  if  he  should  survive  his  wife,  he  would, 
if  called  on  by  the  trustees^  assign  his  estate  and  interest  in  the  said 
houses,  lands  and  premises  to  the  said  trusts,  on  the  trusts  herein- 
before mentioned.  Then  follows  a  power  to  appoint  new  trustees, 
framed  in  such  a  manner  as  to  enable  the  said  Eliza  Mary  Joyce 
and  her  husband  to  remove  the  trustees  without  any  cause,  and 
appoint  other  trustees ;  and  indeed  the  frame  of  the  deed  is  such 
that  it  was,  probably,  a  mode  adopted  of  protecting  the  property 
from  the  creditors  of  Thomas  Joyce  and  his  wife ;  and  I  have  little 
doubt  that,  if  the  case  and  opinion  laid  before  Counsel  had  been 
proved,  this  would  have  appeared.  The  petition  states  that  William 
Joyce,  one  of  the  trustees  (who  was  the  brother  of  Thomas  Joyce), 
misapplied  the  rents,  and  that  the  other  trustee,  Douglas,  entered 
into  the  receipt  thereof,  having  served  notices  on  the  said  William 
Joyce,  the  last  of  which  bore  date  the  10th  of  August  1850;  and 
afterwards  the  petitioners'  father,  having  intermeddled  in  the  receipt 
of  the  rents,  Douglas  gave  up  receiving  the  same.  This  is  denied 
by  John  Button's  answering  affidavit,  who-  says  that  the  agent  of 
Thomas  Joyce  and  hb  wife  continued  to  receive  the  rents  after  the 
execution  of  the  deed  of  1 850.  The  premises  being  under  ejectment 
for  non-payment  of  rent,  and  the  habere  executed,  the  respondent 
John  Hutton  advanced  to  the  landlord  £203.  8s.  8d.,  and  paid  to 


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128 


CHANCEBT  REPORT& 


186a 

JOTCK 

V. 

HUTTQIL 

JudgwimL 


Tbomat  Joyce  idO ;  mmI  the  respondent  John  HnUoa  alleges  thul 
ke  bfts  expended  Urge  sums  in  keeping  4owa  he»d-ren^  i^nd  \n 
repairs^  and  thai  he  is  out  of  pooket,  after  all  sums  received  l^  hii^, 
£214.  Hs.  The  sehedule  to  the  anawering  affidavit  shows  how  this 
sum  is  made  oat.  The  petition  then  alleges  that  the  recqpto^idept 
John  Hutton  received  a  anm  of  £500  on  a  polioy  of  in^urance^ 
which  he  effected  on  the  life  of  petitioners'  mother,  as  coUateiral 
security  with  the  deed  hereinafter  mentioned,  of  the  1 8th  qf  Dece^i- 
ber  1850,  and  that  be  undertook  that  the  petitionera  should  haye  the 
benefit  of  such  inauranoe:  that  allegation,  however,  has  not  been 
proved,  and  is  wholly  denied  by  John  Hutton.  The  petition  states 
the  indenture  of  the  1 8th  of  December  1850^  made  between  the 
petitioners'  father  and  mother,  of  the  first  part,  the  said  Joyce,  of 
the  second  part,  and  the  respondent  John  Huttou,  of  the  third  part ; 
whereby  the  said  parties  of  the  first  and  second  p^rta,  for  th^  alleged 
consideration  of  £20,  of  which  the  petition  stfttes  pnly  £16  was 
paid,  conveyed  the  said  Rouses  in  Dublin  to  the  said  John  Hutton 
and  his  heirs,  for  the  unexpired  term  fi>r  which  same  were  beld ; 
which  deed  was  registered  on  the  12th  of  July  1851.  The  petition 
then  states  certain  articles  of  agreement,  made  between  petitignei^' 
father  and  the  said  John  Hutton,  and  which  bear  date  the  3rd  of 
Dec^ber  1853,  whereby  it  was  agreed,  to  prevent  further  litigation, 
that  the  rents  of  the  said  houses  should  be  divided  between 
them,  share  and  share  alike,  the  said  respondent  John  Qutton 
retaining  a  certain  sum  for  head-rent^  repi^s  and  tfULQs,  end 
collection  of  the  rents  i  and  it  was  ftirther  agreed  tbut,  upon  the 
said  John  Hutton  receiving  £150,  he  would  iiii^er  ^^  possesripn 
to  the  petitioners'  father.  The  petition  then  alleges  thet  t)ie 
respondent  received  the  £150,  by  perception  of  the  rents^  he  not 
having  paid  the  petitioners*  fibber  the  moiety  of  the  rents,  but  only 
a  small  weekly  sum. 

The  petitioners'  mother  died  on  the  let,  of  May  1852,  An 
afldavit  has  been  made,  in  reply,  by  the  petitioner  Sophia  Joyce, 
and  an  affidavit  by  way  of  rejoinder  by  the  re^^ondent  Jp^n 
Hutton,  and  there  are  eonfliieting  siatem^M^  ee  to  soi9e  of  th^ 
facts ;  but  I  do  not  consider  it  necessary  to  BUd9  ihew,  «6«  (m  tfae 


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CHANCBRY  REPORTS. 


1«9 


iepil  -gromnd  I  shall  just  mm  stalt,  I  oMMider  ttiat  the  petilioii  ii 
jM)t  tittltiaable.  The  petUionen  4wv6  no  present  rights  under 
the  marriage  settlemeiit  «f  IJie  5lli  of  April  1631,  as  the  trosts 
im  4heir  fiwonr  ware,  uader  said  settkment,  to  ti&e  effect  only 
after  the  death  of  their  father  wmi  mother;  and  their  fatber  is 
still  living,  and  was  entitled  to  a  life  estate  wsder  said  settlement. 
With  respect  to  the  peet^nnplMl  setdement,  «f  the  16th  of  January 
ld50,  nnder  which  the  petiti— eri  can  alone  ^aim,  the  Hfe  estate 
of  the  petitioners'  motiier,  •conreyed  thereby,  has  determined  by 
her  dsath ;  and  the  petitimwrs'  father  di^  not  thereby  convey  hb 
life  estatd,  as  erroneeosly  stated  m  the  petition,  but  he  covenanted 
with  the  tnistees  that,  if  he  ahoold  snrvive  his  wife,  he  would, 
if  called  ^n  hy  the  trosteee,  assign  to  them  his  estate  and  interest 
ia  the  hovses,  oa  the  trusts  of  the  eettiement. 

The  light  of  the  petitioaers  to  maintain  this  suit  depends,  there^ 
finwy  on  their  right  to  enforee  ^e  speeiffc  performance  of  that 
oovenant  against  the  respondent  John  Hntton,  and  the  right  to 
enforce  soeh  pertfiiimaaaee  must  depend  on  two  questions;  first, 
whether  the  post-nwptiBl  settlement  d£  1850  was  a  voluntary  deed? 
ai!i  if  it  was,  tins  suit  cannot  be  sustained ;  and  secondly,  whether, 
if  the  said  settlement  was,  as  between  the  father  and  mother  of 
the  petitioners  and  the  trustees,  a  deed  for  valuable  consideration, 
the  petitiooers,  who  were  not  within  the  consideratien,  and  were 
no  parties  to  the  oontraet,  can  enforce  the  performance  of  the 
eovenant?  A  merely  meritorions  consideration,  as  a  provision  for 
a  wife  or  children  after  marriage,  will  not  be  a  sufficient  induce- 
meai  for  a  Court  of  Equity  to  lend  its  aid  in  enforcing  a  voluntary 
i^greament  or  covenant :   Jtffr^  f.  Jeffrys  (o)  ;   Dillon  v.  Cop-' 

The  qsestion,  therefore,  arises,  whether  the  post-nuptial  settle- 
ment of  1850,  as  ikr  as  the  petitioners  have  a  claim  thereunder, 
was  a  deed  in  valuaUe  consideration?  A  conveyance  by  hus- 
band and  wife,  of  the  estate  of  the  wife,  is,  as  between  the 
husband  and  wife,  a  deed  for  valuable  consideration,  the  property 


Judgment* 


(a)  Or.  &  Phil.  lie. 
VOL.  1 1 . 


(fr)  4tf.&C.647. 
17 


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CHANCERY  REPORTS. 


1660. 
Eolli. 

• /— -^ 

JOTCB 

HUTTOH. 

JudgwitiU. 


passiDg  out  of  both  husband  and  wife,  and  neither  being  able 
to  convey  without  the  concurrence  of  the  other.  Muikerry  v. 
Chinnery  (a),  ScaU  v.  Bell  {b\  Hewton  v.  Myers  (c),  and  other 
cases,  establish  that.  This  case,  however,  differs  in  this  respect; 
that  here  the  wife  was,  under  the  settlement  of  April  1831, 
seised  for  her  separate  use  for  life,  with  remainder  to  her  husband 
for  life;  and  the  wife,  by  the  post-nuptial  settlement  of  1860, 
conveyed  her  life  estate  and  her  husband  covenanted  to  convey  his 
life  estate  to  her  trustees,  if  he  survived  his  wife,  and  if  called  on  by 
the  trustees.  Now,  whether  the  wife  conveying  her  separate 
estate,  and  the  husband  covenanting  to  convey  his  reversionary 
estate  for  life,  constituted  a  valuable  consideration  between  the 
husband  and  wife,  there  being  no  statement  on  the  face  of  the 
deed  that  the  conveyance  by  the  wife  was  in  consideration  of  the 
covenant  by  the  husband,  it  is,  in  my  opinion,  unnecessary  to 
decide,  as  the  petitioners  were  not  parties  to  the  post-nuptial 
settlement,  nor  within  the  said  consideration,  assuming  that  there 
was  a  valuable  consideration  as  l)etween  the  husband  and  the  wife. 
I  have  already  referred  to  the  cases  which  establish  that  a 
mere  meritorious  consideration,  such  as  a  provision  for  children 
after  marriage,  will  not  authorise  a  Court  of  Equity  to  lend  its 
aid  to  enforce  a  voluntary  agreement  or  covenant.  It  is  also 
established  by  authority  tbat^  as  a  general  rule,  where  two  persons, 
for  valuable  consideration,  as  between  themselves,  covenant  to  do 
an  act  for  the  benefit  of  a  third  person,  that  third  person  cannot 
enforce  the  covenant  against  the  two,  although  either  of  the  two 
might,  as  against  the  other : '  CoUyear  v.  Mulgrave  (d) ;  Hill  v. 
Gorman  (e) ;  Davei^ori  v.  Bishop  (f).  No  doubt,  as  stated  by 
Lord  Cottenham  in  Hill  v.  Gomme^  <*  in  all  marriage  contracts 
(«.  e.,  in  contracts  in  consideration  of  marriage),  the  children  of 
the  marriage  are  not  only  objects  of  it,  but  qwui  parties  to  it" 
But   I   apprehend   that   observation    is    not   applicable   to   post- 

(a)  L.  &  G.,  Ump.  Sag.,  222.  (6)  2  Ley.  70. 

(c)  16  BeaT.  5W.  (rf)  2  Keen,  81. 

(e)  1  BeaT.  540;  S.  C,  5  MyL  4  Cr.  25a 
09  IT.  AC,  CO.,  451;  b.  C,  I  PhU.  698. 


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nuptial  deeds  or.contraots.      There  is  no  marriage  conilderation 
in  SQch  case;  and  I  do  not  understand  on  what  ground  the  peti- 
tioners, as  children  of  the  marriage,  and  who  are  not  within  the 
consideration  (if  any)  of  the  post-nnptial  settlement,  and  who  are 
not  parties  to  the  contract,  can  enforce  it. 

It  if  not  necessary  to  offer  an  opinion  on  a  point  relied  on  by 
the  respondent  John  Hntton,  that  the  deed  of  January  1860 
was  a  deed  executed  by  the  father  and  mother  to  defeat  their 
creditors,  and  was  not  bona  fid^.  The  provisions  of  the  deed 
affbrd  some  colour  for  the  objection,  as  also  the  non-production 
of  the  case  laid  before  Counsel,  or  his  opinion.  I  think  it  was 
imprudent  of  the  petitioners  to  reject  the  offer  made  by  Mr. 
Sherloekf  on  the  part  of  the  respondent  John  Button,  to  take 
£100  if  the  costs  were  paid,  and  to  re-convey  to  the  petitioners. 
Mr.  Sherlock  stated*  and  I  presume  from  the  circumstances  of 
the  case,  correctly,  that  the  petitioners  would  be  unable  to  pay 
the  costs  to  be  incurred  upon  a  reference ;  and  he  therefore  relied 
on  the  legal  objections  I  have  adverted  to,  in  the  event  of  the  offer 
not  being  accepted.  I  am  of  opinion,  on  the  whole,  that  the 
petitioners  have  no  right  to  maintain  the  suit  against  the  respondent . 
John  Button,  unless  they  could  enforce  the  covenant  of  their  &ther, 
contained  in  the  post-nuptial  settlement;  and  I  think  that,  asauming 
there  was  a  valuable  consideration  between  the  husband  and  wife 
and  the  trustees  in  that  settlement,  which  may  admit  of  much 
doubt,  that  the  petitioners  were  not  within  the  conlideration,  and 
were  no  parties  to  the  contract,  and  cannot  enforce  it.  The 
petition,  therefore,  will  be  dismissed. 


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13?  CHANCERY  REPORTS, 


X.  K  Omirt. 


Kantrelr   tfiftattif   ffatirt. 

In  the  Mstter  of  the  EitAte  of 

Sir  JOHN  NUGENT  HUMBLE^  Owner  and  P$Hti0nir, 

Deraee  of  J.  T.  FITZGERALD. 

•Toil.  15. 

A  enten  into  Th£  fltota  of  this  caee^  whieh  seemt  la  be  a  ease  of  first  impressloiiy 

an  agrreenienty 

to  the  follow-  aj^ear  follj  fron  the  judgment.    The  ease  came  en  for  argument 

'^^That^hr'    o^  oh^tion  td  the  final  edkedale. 
flhonld  ezecate 
a  mortgage, 

^^  ^£5      ^'  •^-  -^  "^^•^^  **  ^^  objection,  cited  Cn^  r.  fW«(«)  * 

^<^^  ^  Fr#moi«ftT.l>e(lMr0(6);  Pwaeh^i^  om  SeOlemetUs,  p.  550;  Wittiam 

B  and  c/  to  t.  X«ca#(e)(   Leckmere  v.  Bawl  of  CarHih{d)i    Gardiner  t. 

secure  to  them  ^  ^  ^  ^  ^ 

an  amount       aTaaPfMtffkf  («)» 

awarded,  yiz., 

£3120,   with 

interest  at  £5 

per  cent,  on        Mr.  Thomm  Hmrrky  and  Messrs.  Owen  F.  SmM  and  /SbMlM^ 

sum  of  £2600,  ^^^  ^^i°»  tfenlri^  cited  RaundeU T. Sremy  (f) ;  Creedr.  Carey  {g)% 

frSLX^  M^a<foiST.5iM«iW'W;  Cavemry  r.  Cowenhy  (i). 
of  April  1842, 

the  date  of  the  award,  A  giying  reasonable  proof  that  he  has  power  to  grant  snch 
mortgage,  and  that  the  property  to  be  mortgaged  is  adequate  seenrity  lor 
it. — Meld,  that  snch  an  agreement  (though  not  sufficient  to  ground  a  decree 
for  immediate  specific  ptrfiaanaDoe)  would  antfiorise  the  Coml  el  Chaooeiy  to 
order  A  to  select  a  suffiaent  portion  of  his  estates,  and  make  it  a  security  in  com- 
pliance with  the  agreement 

Held  alao,  that,  afker  the  lapse  of  four  years  and  A's  doath,  it  ooald  aot  he 
spedfically  enforced  acainst  the  heirs  and  devisees  of  A,  but  would  enable  B  and  0 
to  institute  an  administration  suit,  and  claim  that  a  sufficient  portion  of  A's  real 
'  estate  be  applied  in  payment  of  the  debt 

Held  also,  that  this  being  so,  it  was  (after  a  sale  in  the  Landed  Estates  Court) 
to  be  regurded  as  a  specific  charge,  taking  priority  of  general  creditors,  hutjmigne 
to  other  specific  charged 

(a)  4  Ir.  Ch.  Bep.  316.  (b)  1  P.  Wms.  429. 

(c)  2  Cox,  Ch.,  160.  (rf)  3  P.  Wms.  211. 

(s)  Coop.,  C.  B.,  801.  09  2  Vem.  481. 

(if)  7  Ir.  Ch.  Bep.  295.  (A)  1  Moll.  585. 

(t)  2  P.  Wms.  222. 


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CHANCBRY  BBPOBT&  ' 


123 


HABOBBAtB,  J. 

The  facto  of  this  case  are  as  follows : — The  lands  sold  im  Mb 
matter  wave  Ae  profperfy  of  Thamas  Josepk  Fitzgerald,  who  is  now 
daoeasadi  and  tlMy  ilrere  derWed  by  ]um»  in  part  at  least,  frem  Ua 
graoid&tber,  ThoaBaa  FitageraM.    In  and  prior  to  the  year  1841, 
diapntea  were  pending  between  him  and  two  gentlemen  of  the  name 
of  QnuL  and  Heam,  and  their  wiTes^  as  to  his  liability  te  a  consider- 
able aom  of  mooey,  in  eonseqoence  of  an  alleged  breach  of  trusty 
conunittad  by  his  gtandibtber,  Thomas  Fitagerald ;  and  bj  a  ^leei 
of  ^6  I6tb  of  NoTcmber  1941,  all  matters  in  dispate  were  referred 
to  the  arbitration  of  the  late  Jndge  libore  and  Judge  KeaHnge,  then 
jpaetking  at  the  Bar.    I  am  not  informed  whether  tiiese  gentlemen 
made  any  final  award,  bnt  it  sufficiently  appears  that  they  had 
decidad  that  Mr.  Fitogerald  should  pay  t»  Mr.  Qain  and  bis  wife, 
and  Mr.  Heam  and  his  wife^  in  eqnal  moieties,  £2600,  late  cuReney, 
with  SIX  years'  intexcst>  at  £5  per  cent.,  in  all  £3120  sterMng. 
Nediiaig  fnrtber  appears  to  hare  been  done  vntil  the  29th  of  May 
1860^  when  a  meeting  was  held  between  the  parilea  and  tbeir  soli* 
dter,  the  restilt  of  whiek  was  embodied  in  a  written  memorandnm 
of  ^preement,  signed  by  Mr*  Fitigerald  and  Us  solicitor,  by  Mr. 
Quin  and  the^aolickoar  of  Mr.  Qain,  and  Mr.  Heam  i  and  the  qnes^ 
tion  which  I  have  to  detvrmine  is^  whether  this  agreement  is  eapalito 
of  being  enfinnced  speeifleaUy  against  the  real   estate  of  Thomaa 
Joseph  Fitsgerald,  er  its  prodnee  now  in  Court?    It  is  admitted 
that  the  agreement  can  have  no  effect  against  mortgagees  of  any 
part  of  Mr.  Fitagerald^  real  estate,  or  against  parties  having  specific 
charges  thereon  i  and  effect  is  somght  to  be  given  to  it  only  as 
against  the  heir  and  deviaaea  of  Mr.  Fitsgerald  and  his  general 
efeditorBi    The  snbatanoe  of  the  agreement  may  be  stated  thns« — 
*^  It  was  agreed  that  Mr.  Fitsgerald  should  execute  a  mortgage,  pay* 
dbfcle  with  interest  ai  £5  per  eent.,  in  fbur  years,  to  Dr.  Qafn  «m1 
Mr.  Heam^  to  seenra  to  them  the  amount  awarded,  vi^,  £9120, 
with  interest  at  £5  per  osnt.  on  the  prmeipal  sum  of  £2600,  hkU 
ennrency,  from  the  27th  day  of  April  184^  the  date  df  such  award, 
Mr.  Fitagerald  giving  reasonaUe  proof  that  he  has  power  to  grant 


1860. 
Xt.  J5.  C#itrt. 

In  re 
BUMBUB. 

MigmmL 


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CHANCERY  EEPORTS. 


1860. 
X.  E.  Ctmrt. 


JudgmnL 


such  mortgage,  and  that  the  property  to  be  mortgaged  ia  adequate 
security  for  it " 

Numerous  cases  were  cited,  beginning  with  Freemouii  w. 
Dedire{a\  principally  upon  covenants  to  settle  or  to  charge  join- 
tures, in  some  of  which  they  have  been  held  to  be  specific  liens,  and, 
in  others,  the  contrary,  according  to  circumstances.  These  cases 
generally  have  reference  to  after-acquired  estates ;  and  where  there 
is  a  covenant  to  settle  such  estates,  of  a  particular  value,  the  rule 
would  appear  to  be  that  such  a  covenant  does  not  specifically  aifeot 
property  purchased,  unless  there  be  evidence  to  show  that  the  pur- 
chase was  made  with  a  view  to  its  performance.  I  intimated,  during 
the  argument,  that  I  was  disposed  to  place  a  construction  upon  this 
agreement  which  would  render  that  dass  of  cases  only  remotely,  if 
at  all,  applicable.  It  appeared,  and  still  appears  to  me,  that  the 
agreement  must  be  read  in  one  of  two  ways ;  it  is -either  n  mere 
general  promise  by  a  debtor  to  his  creditor,  that  he  will  give  seeurity 
for  the  debt  to  be  paid  at  the  end  of  four  years,  or  it  is  a  ipeoific 
agreement,  for  sufficient  consideration,  that  he  will  mortgage  a  suffi- 
cient portion  of  his  real  property  to  secure  the  debt;  and  show  a 
good  title  to  it.  The  former  would  be  vague,  and,  in  thf  eye  of  a 
Court  of  Equity,  unmeaning  and  incapable  of  enforcement.  The 
latter  would,  I  think,  be  a  contract  sufficiently  definite  for  the  Court 
of  Chancery  to  enforce,  if  the  debtor  should  neglect  to  tender, 
within  a  reasonable  time,  a  sufficient  mortgage,  with  proper  proof 
of  title. 

After  full  consideration,  I  am  disposed  to  think  thut  the  latter  is 
the  fair  construction  of  this  agreement.  Th6  term  ''mortgage" 
implies  ordinarily  a  security  on  real  estate ;  and  a  covenant  to  make 
a  mortgage  would  not  be  satisfied  by  a  mortgage  of  a  ship  or  of 
personal  estate,  any  more  than  trustees  authorised  to  lend  money  on 
mortgage  would  be  justified  in  lending  it  on  a  mortgage  of  goods. 
I  think  also  that  this  agreement  imj^rts  a  mortgage  by  Mr.  Fits- 
gerald  of  a  sufficient  portion  of  his  then  existing  real  estate,  as  it  is 
evident  that  the  agreement  was  intended  to  be  carried  into  execu- 
tion immediately ;  that  is,  within  a  reasonable  time,  and  not  upon 

(a)  1  F<  Wmf .  429. 


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CHA]NC£BY  BEFOBTS. 


135 


any  future  contingeiK^y  such  ts  his'  porchasiiig  other  estates.    This 
view  distinguishes  this  ease  from  the  authorities  cited.  Now,  taking 
this  as  the  meaning  of  the  agreement,  I  do  not  see  any  ground  for 
doubting  that  a  contract  between  a  debtor  and  his  creditor,  that  the 
former  will  make  a  mortgage  of  all  his  real  estate,  or  of  a  specific 
portion  of  his  real  estate,  to  secure  payment  of  the  debt  with  inter- 
est at  a  future  day,  is  a  contract  which  would  be  enforced  by  a 
Court  of  Equity.     The  case  of  CrofU  t.  Feuge  (a)  was  relied  on 
against  this  proposition ;  but  that  case  was  decided  upon  the. ground 
that  the  creditor  had  already,  by  means  of  a  judgment^  substantially 
got  all  that  the  Court  could  give  him ;  and  also  on  the  ground  that 
there  was  no  consideration  for  the  agreement ;  and  the  Court  was 
influenced  by  the  apparent  hardship  of  subjecting  the  debtor  to  a 
suit  to  compel  him  to  make  a  mortgage,  contemporaneously  with 
another  proceeding,  to  sell  the  estate  on  foot  of  the  collateral 
judgment.    In  the  present  case,  however,  there  is  a  sufficient  con- 
sideration in  giving  time  for  four  years ;  and,  during  the  period  of 
delay,  in  such  a  case  as  I  have  put,  I  do  not  see  any  obstacle  in 
the  way  of  enforcing  specific  performance.    Is  the  case  then  altered, 
when  the  agreement  is  not  to  mortgage  all  the  debtor's  estate,  or  a 
defined  portion  of  it,  but  to  mortgage  a  sufficient  portion,  to  be 
selected  by  the  debtor,  and  proved  to  be  sufficient?  It  is  not  difficult 
to  suggest  practical  impediments  which  would  occur  in  the  course 
of  a  suit  to  obtain  performance  of  such  an  agreement  \  but  I  do 
not  see  any  objection  in  principle  to  a  decree  requiring  the  debtor 
to  select  a  sufficient  portion,  and,  in  default  of  his  doing  so,  that  the 
Master  should  make  the  selection.    I  am  bound,  however,  to  say 
that^  after  the  end  of  the  four  years,  and  the  death  of  the  debtor, 
I  do  not  think  that  a  suit  could  be  sustained  against  his  heir 
or  devisee,  to  compel  him  to  make  the  mortgage.    Such  a  course 
would  be  open  to  the  objection  of  its  being  a  suit  to  obtain 
security,,  with  a  view  to  the  security  being  immediately  enforced. 
The  proper  course,  I  think,    would  be  to  proceed  by  way  of 
administration  of  the  estate,  and  in  the  course  of  such  a  suit  to 
claim  that  a  sufficient  portion  of  the  produce  of  the  real  estate 

(a)  4  Ir.  Chan.  Bep.  816. 


1860. 
L»  Em  Court* 

' y ' 

In  re 
HUMBLB. 

JndgmtmL 


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136  CHANC£BT  BEPOBTS. 

1S60.  sbonld  b«  applied  to  paj  the  d«bt.  That  k  what  th«  oredium 
tre  BOW  seeking  to  do ;  and,  <m  the  whole,  I  am  of  opinion  that, 
as  against  the  devisees  of  Thomas  J.  Fitagerald,  they  are  entitled 
to  this  relief;  and,  as  the  general  creditors  oan  only  attaoh  the 
property  whi^  beneficially  comes  to  the  heir  or  devisee,  I  think 
that  they  are  equally  bounds  The  Statnte  of  Limitations  does 
not  apply,  as  the  consolidated  sum  to  be  aeeured  by  the  mortgage 
wouid  not  be  payable  until  May  1864,  whioh  was  within  six  years 
of  the  filing  of  the  p^ition  in  this  Court.  Indeed  the  petition 
was  filed  within  two  or  three  years  after  the  date  of  the  agree- 
0)00 1  of  1850,  and  before  the  lapse  of  the  four  years'  delay. 

I  have  had  some  doubt  whether  Dr.  Quin,  by  taking  a  bond  and 
warrant  of  Thomas  J.  Fitzgerald,  did  not  waive  his  right  under 
tho  agreement.  It  is  not,  however,  unreasonable  to  assume  that 
the  bond  and  warrant  were  given  by  the  debtor  with  a  view  to 
the  judgBMBt  being  made  a  charge  on  his  real  estate ;  and,  as  this 
has  £uled,  I  think  Dn  Quin  is  entitled  to  fall  back-  on  the  agree- 
ment / 


In  the  Matter  of  the  Estate  of 
GEORGE  POWELL  HOUGHTON,  Owner  and  PeHtioner. 


Nov.  15. 


A  lease  for  500  Ths  petition  in  this  case  was  presented  by  George  Powell  Hough* 

14th    Decern-  ton,  owner  and  petitioner,  for  the  sale  of  certain  of  his  property 
her  1669,  con-         ,  .  1,     .  \ 

tained  a  core-  m  the  oounty  of  Wexford,  including  (amongst  others)  the  lands  of 
nant    by    the  «_.  . 

lessee,  his  exe-  Kihnanogue,  held  under  an  indenture  of  lease,  dated  the  14th  of 

^j^t^„  im^  Deeember  1669»  and  made  between  Robert  Leigh,  of  the  one  part, 

assigns,    with 

the  landlord,  bis  executors,  administrators  and  assigns,  not  to  sell  before  the  first 

prefer  be  made  to  the  landlord,  his  execntors,  administoators  and  assigns,  to  the 

end  that  thej  might  have  the  fint  rpfasal  thereof,  and  pay  as  mnch  as  any  other 

person  should  bona  fid*  offer.-^Heid,  that  is  a  ooyenant  that  runs  with  the  land,  but . 

that  it  is  not  a  perpetual  one ;  and,  therefore,  an  assignment  of  the  tenant's  interest 

haying  been  made  140  yearsago,  it  must  be  presaged  that  the  landlord  declined  the 

ofier  or  waired  his  right,  and  the  tenant  must  now  hold  discharged  from  the  said 

ooTenant 


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CHANCERY  REPORTS.  137 

and  Patrick  Lambert,  of  the  other  part,  for  the  term  of  500  years,        I860. 

at  the  yearly  rent  of  408.     The  lease,  in  addition  to  the  usual  cove-     nI — 1^ — ^' 

nants,  contained  one  in  the  following  words : — "  And  likewise  the   houohton. 

said  Patrick  Lambert,  his  executors,  administrators  and  assigns,      allZIL 

doth  covenant,  promise,  grant  to  and  with  the  said  Robert  Iieigh, 

his  executors,   administrators  and  assigns,  that  neither  the  said 

Patrick  Lambert,  nor  his  executors,  administrators  and  assigns, 

shall  or  will  assign    over  or  sell   their   whole  interest,   or  any 

part  of  their  interest,  in  the  before  demised  premises,    to   any 

person  or  persons  whatsoever,  before  the  first  proffer  thereof  be 

made  unto  the  said  Robert  Leigh,  his  executors,  administrators 

or  assigns  (if  they,  or  any  of  them,  be  at  Rosegarland  or  near 

Eilmanohe  at    the  time    of  such   sale),    to  the    end   that  they 

may  have   the  first  refusal  thereof,  and   pay  as  much  for   the 

same  as  any  other  person  or  persons  shall  bona  Jide  offer  for  the 

same.'* 

The  lessee's  interest  in  the  land  comprised  in  the  said  lease  sub- 
sequently became  vested  in  the  said  George  Powell  Houghton,  and 
the  lessor's  interest  in  Francis  A.  Leigh.  It  appeared,  during  the 
course  of  the  case,  that  an  assignment  of  the  lessee's  interest  had 
been  executed  to  a  purchaser  for  value,  about  140  years  ago,  and 
that  rent  had  always  since  that  time  been  received  by  the  persons 
representing  the  lessors,  from  the  persons  deriving  title  under  the 
said  assignment. 

Mr.  J,  B,  Walih  (with  him  Mr.  /?.  Owen)  moved,  on  behalf  Argument. 
of  the  said  F.  A.  Leigh,  that  the  rental  in  the  said  matter  might  be 
amended,  by  placing  the  lands  and  hereditaments  comprised  in  the 
said  indenture  of  lease  in  a  separate  lot,  and  not  jointly  with  any 
other  lands,  in  order  that  the  said  F.  A.  Leigh  might  have  the  right 
of  pre-emption  reserved  to  him  by  the  said  indenture.  The  cove- 
nant in  the  lease  is  not  repugnant :  Weaiherall  v.  Geering  (a).  If 
the  covenant  runs  with  land,  the  heir  taking  the  reversion  may  sue 
upon  covenants,  though  not  expressly  entered  into  with  the  lessor 
ADd  his  heirs :  Saeheverell  v.  Froggart  {b) ;   2  Piatt  on  Leatei^ 

(a)  12  Yes.  jon.  504.  (6)  2  Sannd.  367. 

VOL.  n.  18 


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CHANCERY  REPORTS. 


1860. 


In  re 


p^  362 ;  Doe  d.  Ban^d  ▼.  Hayley  (a) ;  and  assigiiee  of  reversion 
has  the  same  right:  10  Car.  1»  seas.  2,  c.  4  (Ir,)  ;  82  H.  8,  e.  34 
HOTOHTON.  (S^*)  s  1  F^urL^  p.  509^    This  coFenaiit  runs  with  the  knd  t  2  PlaU 
"^^        en  Leases^  p.  400  j  iSh^f.  K.  oih^  P.»  p.  485^ 

Mr../.  iio$wr4^  for  Geofge  PoweU  Hong^n,  refisrred  to  SmyM» 
Landhrd  and  Tamnt,  pp^  2»4|;  286.  The  right  of  pre-emption  in 
this  case,  from  the  Tory  language  o£  the  eovenani^  is  conined  to  the 
irst  sale  oalj ;  aad  it  m«st  nom  he  prfsomed  that^  on  the  oecaaioa 
of  tiM  assigmeiit  of  the  lessee's  interest,  so  long  ago^  the  \umot 
lefnaed  the  land,  and  therdere  the  right  does  not  now  exist.  He 
referred  als»  to  SUcknr  t.  Dean  (6) ;  Keppel  ▼.  Bailey  {e) ;  Duke  of 
Dmdfordy.  Trmteoi  of  Brkisk  MnMum{dy  ;  Sparrow  v.  Cooper  (e> 

Mr.  R^  ihcen^  in  repl  j. 

Sparrow  y.  Cooper  is  not  now  law:  see  Sugden  on  Vendore 
and  PmrAaeers^  '^PF**  P*^  651 ;  Wkaiman  y.  Oibeon  (f)  %  Mann  ▼. 
Si9pbene(<s^) ;  Tulk  r.  Moxhay  (k). 


Nov.  17., 
Judgment. 


HABOmXATB,  J. 

This  is  an  appKeatien  on  the  part  of  Mr.  Leigh,  of  Roeegarland, 
to  haTet  the  rental  amended  hy  placing  in  a  separate  lot  that  portios 
of  the  Eilmannodc  property  which  ia  held  hy  the  owner  nnder  a 
lease  of  the  10th  of  December  1669}  in  order  that,  when  the  sale  has 
taken  place,  Mr.  Leigh  may  exercise  an  alleged  right  of  pre-emption, 
and  take  the.  lease  at  the  same  price  as  is  offered  for  it  at  the  sale. 
I  am  of  opinioa  that,  if  the  rigfai  of  pre-emption  oxistSi  there  Is 
necessaHly  incident  to  it  a  right  to  haTe  the  lease  sold  by  itself,  and 
not  in  conjnaotion  with  othet  ppoperty  in  which  Mr.  Leigh  has  no 
interest,  and  bo  ccmresponding  right  of  pre-emption.  The  question 
tnms  on  the  eflfeot  of  a  clause  in  the  lease  of  1669)  which  ia  im  the 
form  of  a  co^eoant  hy  the  lessee  Pattick  Laaihert,  that  neither  he 


(a)  12  East,  464. 
(c)2M.&E.517. 
(e)  H.  4  J.  404. 
(9)  15  Sim.  977. 


(b)  16  Bear.  161. 
(<0  2M.&K.652. 
09  9  Sim.  126. 
(A)  2  Ph.  775. 


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CHANCERY  REPORTS.  1»9 

•or  feds  exeootors,  ateinbtoaton  or  MV^St  woold  assigo  OTer  or        ISSO. 

iett  their  wkole  inlerast,  or  ai^  )pftFt  of  it,  in  liie  4emiMd  premises,  ^— \,. .,/ ' 

before  the  ii«t  profit  be  made  lo  Beben  Leigh,  hu  exoeotMs,  houohtom. 


sAMniBtralors  Or  aesigM  (if  they  oar  lie  be  at  Bod^arknd  at  the 
tiue),  to  the  e^d  that  he  or  they  m$j  ha^e  the  tot  Missal  thereof, 
and  pay  as  miieh  for  tiie  eaaie  m  any  other  person  should  htmafide 
oftr.  After  the  best  <ioiisM0rsti#n  that  I  ean  fiTS  the  mtttter,  I 
see  ao  reawn  to  doubt  Ihat,  regarded  -as  a  legal  eerveaflant,  it  vk  one 
fvhkh  iviU  run  mVtk  the  land,  so  the*  the  teaefit  of  it  wifl  belong  for 
tlM  time  being  to  Ae  owaer  «£  the  reversion,  nad  that  the  burden 
of  it  willlhll  «9on  the  <>wn0r  fbr  the  «ime  beingof  tba  leave,  t^ere 
I  ind  a  coyenairt  rebning  to  the  thwig  ^mised,  which  cannot  possi- 
bly bs  perftnMed^  except  by  the  lessee  or  the  assignee  for  the  tij»e 
bfittg^f  the  leasey  and  to  the  benefioial  proitof  srhioh  ao  title  ean 
be  made,  exeept  by  the  <miisr  of  the  vensrsiMiy  it  seems  to  tne  thai 
to  hold  that  saeh  a  ooyeuaal  does  not  nm  with  the  land  has  the 
effeet  of  destivying  it  altofether.  But  ivhatever  donbt  anayiealst 
On  this  teehaioal  point,  there  eannot  be  moeh  doobt  that  4he  eon- 
tratft  is  one  whidh  a  Court  of  Squity  would  enforae  against  a 
pvrcd^ase  with  netiee ;  and  in  such  m  ease  as  this  •veiy  purchaser  is 
necessarily  m  pcapcbaser  with  aotiee.  Iiet  ws-  sappose  for  a  moment 
that  a  lease  ooatains  a  clause  thai  the  hiadlord  anry  at  any  time 
determine  it,  on  payment  of  ft  certain  sum  of  moneys  can  there  be 
any  doubt  that  such  a  clause  is  vaKd,  and  capable  of  being  enfoteed 
at  Law  if  it  be  in  the  nature  of  a  coofditiciti,  and  Eqaityif  it  bein 
tiie  form  of  a  covenant  or  contract  P  The  preaeut  eorenant  is  mora 
limited)  for  it  restricts  the  landlord's  power  of  daiermiaing  the  lease 
to  certain  events,  over  which  the  lessee  has  the  principal  oontroL 
If  I  am  right  in  this  view,  the  only  question  is  as  to  the  construction 
of  the  covenant.  Is  it  a  general  and  perpetual  covenant  that  when- 
ever  the  owner  of  the  lease  wishes  to  part  with  it  for  money,  he 
must  give  the  landlord  the  pre-emption,  although  he  himself  was  a 
purchaser  for  money  ?  or  is  it  simply  a  contract  by  the  lessee  that» 
whenever  he  or  his  representatives  or  family  shall  sell  the  lease^ 
they  shall  give  the  first  offer  to  the  landlord  ?  I  may  observe  tbat^ 
the  latter  is  a  much  more  probable  species  of  contract  than  the 


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140  CHANCERY  REPORTS. 

I860.        former;  in  fact  it  ia  a  natural  contract  to  enter  into,  whenever  a 

.1.^.^,....^'    Yendor  (which  in  this  case  Mr.  Leigh  substantially  was)  sells  to  a 

HOUGHTON.  P^i*^^  ^  ^  \l\vA  of  favoar.     Sach  a  contract  points  to  a  personal 

wish  on  the  part  of  the  landlord  or  vendor  to  have  the  property 

Judgmm.  ^  r    v^  J 

back  at  its  fair  value,  whenever  the  lessee  or  purchaser  ceases,  by 

himself  or  his  family,  to  have  the  personal  enjoyment  of  it.  I  should 
not  have  entertained  any  doubt  at  all  that  this  was  the  view  of  the 
parties  in  this  case,  if  it  were  not  for  the  introduction  of  the  word 
« assigns''  into  the  covenant;  in  all  other  respects  I  should  have 
considered  the  language  of  the  covenant  as  conclusive  that  the 
parties  were  merely  contemplating  the  event  of  the  property  passing 
from  Lambert  and  his  representatives  to  a  purchaser.  There  are 
no  words  indicating  a  plurality  or  succession  of  sales ;  nothing 
pointing  to  a  permanent  right,  toHes  quoHeSj  whenever  the  property 
should  be  sold.  I  do  not  think  that  this  very  extensive  and  incon- 
venient construction  of  the  covenant  should  be  adopted,  merely  from 
the  use  of  the  word  **  assigns,"  particularly  as  a  meaning  can  be 
given  capable  of  satisfying  that  word,  without  giving  so  high  a 
degree  of  importance  to  it.  The  word  *'  assigns "  may  very  well 
^pply  to  the  case  of  parties  claiming  as  legatees  or  volunteers  under 
the  lessee,  or  persons  claiming  under  a  marriage  settlement,  or  any 
form  of  assignment,  except  that  of  an  assignment  upon  the  sale  for 
money.  On  the  whole,  I  think  that  a  purchaser  <^  this  lease  fw 
money,  the  landlord  having  had  the  offer  of  standing  in  his  place,  and 
having  declined  it,  holds  the  lease  free  from  this  onerous  condition. 
Applying  these  principles  to  the  present  case,  I  find  that  the  lease 
was  sold  by  Lambert's  son  (I  believe)  in  1720,  to  a  purchaser  for 
money  value,  under  whom  Mr.  Houghton  derives.  I  must,  of 
course,  now  assume  either  that  the  landlord  then  declined  the  offer, 
or  waived  his  right,  as  there  has  been  a  possession  for  140  years^ 
without  any  attempt  to  enforce  a  title  on  the  part  of  the  landlord. 


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CHANCERY  REPORTS.  141 


1860. 
L,  E,  Court. 


In  the  Matter  of  the  Estate  of 

WILLIAM  HUMPHREY  RATHBORNE,  ROBERT 

ST.  GEORGE  RATHBORNE,  GEORGE  LOWTHER 

RATHBORNE,  RICHARD  COFFEY  and  PENELOPE 

.  COFFEY,  hia  wife,  Otonen  and  PeHHonen. 


Nov.  27. 


William  Ratbbornb,  late  of  Scribblestown,  in   the  conntj  of  A  lapsed  share 

of  a  reddae  of 
Dublin,  father  of  the  several  owners  and  petitioners  (except  Richard  real  and  per- 
sonal estate, 
Coffey,  the  husband  of  his  daughter  the  said  Penelope  Coffej),  derised,  sub- 
made  his  will,  dated  the  19th  day  of  December  1855,  and  which,  {>ayment  of 
afier  the  confirmation  of  certain  settlements  and  appointments,  andtestament- 
and  the  execution  of  certain  powers,  contained  the  following  re-  S^notTSSte* 
siduary  gift ; — "  And  as  to  all  the  rest,  residue  and  remainder  of  *f t^**^^^?^ 

my  property,  real  and  personal,  of  every  nature,  kind  or  description,  in  exoneration 

of  the    rest 

whereof  I  may  die  seised  or  possessed,  my  will  is  that  the  same  of  the  resi- 
duary estate, 

be  sold   by  my  executors  hereinafter  named;  and  the  produce  bat  rateably 

the«of  (sul^ect  to  the  payment  of  my  debt.,  «.d  fimend  and  ^'^  JL. 
testamentary  expenses)  I  give,  devise  and  bequeath  the  same  to     StaUmenL 
my  sons  Robert  St  George  Rathbome,   St.  George  Bathbome, 
Gorges  Lowther  Rathbome,  and  my  daughter  Penelope  Coffey, 
share  and  share  alike,  as  I  consider  my  eldest  son  William  is 
sufficiently  provided  for*'' 

The  aaid  testator  died  in  the  month  of  September  1857,  without 
revoking  or  altering  his  said  will,  and  left  all  the  said  residuary 
devisees  him  surviving,  with  the  exception  of  the  said  St  George 
Rathbome,  who  died  in  the  lifetime  of  his  father,  the  said  testator. 

Some  time  after  the  death  of  the  said  testator,  the  petition  was 
presented  for  a  sale  of  the  property  comprised  in  the  said  will, 
and  the  name  of  the  said  William  Humphrey  Rathbome  was  used 
as  one  of  the  owners,  but  without  his  consent ;  but  he  was  aware 
of  the  proceedings,  and  offered  no  opposition  thereto.  The  property 
of  the  testator  consisted  of  estates  of  different  tenures ;  some  in 


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1660. 


142  CHANC£BY  REPORTS. 

fee-siinple,  some  held  under  leases  for  lives  renewable  for  tYtr, 


In  re 


and  some  under  chattel  leases.  The  said  William  Humphrey 
BATHBOBNE  Rathbomo,  one  of  the  owners,  was  the  eldest  son  and  heir-at-law 
siaiamLi  ^^  ^^  ^^^^  testator,  and,  on  his  father's  death,  became  entitled 
to  the  share  of  the  saSd  St.  George  Rathbome,  so  far  as  it 
consisted  of  realty.  The  question  arose  on  the  «llooatioii  of  the 
surplus  funds,  after  the  payment  of  all  the  izicumbranoes ;  the 
residuary  dcFisees  contending  that  the  lapsed  share  of  St.  G^rge 
Rathbome  was  liable  to  the  payment  of  debts  and  incumbrances, 
in  exoneration  of  the  shares  of  the  other  residuary  devisees. 


Mr.  J.  E.  Waltk  (Mr.  Rickatd^  with  him),  Ibr  the  residuary 
devisees. 
ArgHmau,         In  the  applkation  of  aissets  in  the  payment  of  debts  and  lega- 
cies, estates  whioh  descend  ie  the  heir,  whether  aoquired  btifbre 
,  or  after  the  making  of  the  will,  are  liable  to  the  payment  of  debts 

and  legacies,  in  exoneration  of  real  and  personal  property,  devised 
or  bequeathed  charged  with  debts.  See  2  Jarman  on  WUb^ 
p.  327,  and  the  cases  therein  reflurfed  to. 

Mr.  Robert  Oimm,  for  the  heir-at-law.  • 

TIm  cases  cited  cm  ikie  other  side  do  not  apply;  for  the  rule 
laid  down  in  those  oases  is  based  on  the  principle  that  the  in- 
tention of  the  testator  should  not  be  diBapp<teted:  Ckafim  v. 
Chapiin  (a) ;  GoUon  v.  Handeo^k  (6).  The  testator's  intentkm 
will  not  be  frustrated  if  the  lapsed  sharo  beai«  debts  equally 
with  the  rest  of  the  pesidue.  This  n  not  a  oaae  of  one  estate 
devised,  and  anotther  descended ;  it  is,  in  faet,  a  devise  of  one 
estate  for  payment  of  debts,  and  another,  viz.,  the  residue,  to 
fbnr  persons,  and  out  of  which  residue  there  is  a  laps^.  The 
rule  as  to  real  estate  descended  does  not  apply  to  ^  case  of  a 
lapsed  devise :  BmneU  v.  Bachelor  (c).  It  is  decided  that  a 
lapsed  share  of  real  estate,  devised  subject  to  payment  of  debts, 
is  applicable   for  payment  of  debts;  in  the  same   order  as  the 

(a)  aP.  Wms.  368,  note.  (b)  2  Atk.  424.. 

(c)  1  V«.  jim.  67. 


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CHANCERY  REPORTS.  143 

devised  estetM :  Wood  v.  Ordieh  (a) ;  see  also  FiiUr  v.  FUher  {h) ;        186a 
Pother  V.  If ordkon^  (c) ;  WilUam  v.  C7iU«y  (d).  L.E.(^ 

In  rt 
BATBBORNS 

HASaBBATX,  J,  

Dm.  1$. 

William  Bathbome,  the  testator  in  this  matter,  by  his  wiU,  Judgment. 
made  in  1855,  directed  that  all  his  property,  real  and  personal, 
whereof  he  ought  die  seised  or  possessed,  shoald  be  sold  by  his 
executors ;  and  the  prodace  thereof  (subject  to  the  payment  of 
his  debts,  and  funeral  and  testamentary  expenses)  he  devised  and 
bequeathed  to  his  sons  Robert  Rathbome,  St.  George  RathboriM^ 
Gorges  Lowther  Rathbome^  and  his  daughter  Penelope,  share 
and  share  alikos  stating  that  he  considered  his  eldest  son  William 
suflSdently  provided  for.  One  of  the  four  legatees  died  in  the 
testator's  lifetime,  so  that  his  one-fourth,  as  to  the  real  estate^ 
descended  in  Equity  to  his  heir,  William  RaUibocne,  and  as 
to  the  personal  estate,  devolved  upon  his  nexi*<tf-kin.  The 
question  which  is  now  raised  is,  whether  this  fourth  ia  liaUe 
to  the  ^debts  of  the  testator,  in  exoneration  of  the  other  shares 
of  the  residuary  estate,  or  merely  rateably  with  than  i  I  entertain  , 
no  doubt,  either  upou  prinoiple  or  upon  authority^  that  tiie  proper 
mode  of  administration  is  t»  pay  the  dehto  out  of  the  genenl 
residuary  fund,  and  that  the  balance  ia  to  be  divided  into  four 
shares,  and  that  one  of  theae' fourths,  thus  ascertained)  is  to  go, 
as  I  have  stated^  to  the  heir  and  next-of-kin.  By  this  distribu- 
tion, each  of  the  three  surviving  vesiduary  legatees  obtains  pseqisdy 
what  the  testator  gave  to  hiuk,  and  he  is  not  placed  in  any  worse 
Off.  in  any  better  position  than  he  would  have  been  in  if  there 
had  been  no  lapse.  The  rule  of  Equity  appears  to  be  that,,  where 
there  is  a  devise  or  bequest  of  any  t>srticular  real  or  personal 
property,  the  property  which  is  not  disposed  of  and  descends  to 
the  heir  must  indeainify  the  deyised  property  from  debts;  for 
the  flunple  reason  that,  if  any  of  ihe  debts  is  cast  upon  the  devised 
esMe,  there  is  a  frustratioa  to  that  extent  of  the  testator's  dis- 

(a)  3  Sim.  &  Giff.  126;  8.  C,  1  Jur.  (£ng.)»  N.  8.,  584. 
(4)  2  Keen,  610.  (c)  1  T.  &  C,  C.  C,  805. 

(^  3  Yak  M5. 


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144  CHANCERY  BEPOBTS. 

1860.        position.    The  testator,  in  making  a  devise,  is  considered  to  have 

>_-^-  ^  '    intended  such  a  marshalling  of  his   various  assets  as  will  hest 

RATHBOBNE  o^^ctuate  his  expressed  intention  of  devising  the  estate  to  his 

devisee,  which  means  devising  the  whole  estate  free  from  liahilities. 

But»  from  the  nature  of  the  case,  this  doctrine  can  have  no 
application  to  devisees  of  a  fund,  which  fund  is  defined  as  being 
the  general  residue  of  his  estate,  subject  to  the  payment  of  his 
debts,  and  funeral  and  testamentary  expenses.  The  Court  cannot 
collect  any' intention  that  any  particular  estate  or  any  particular 
amount  should  go  to  the  devisees ;  and,  therefore,  any  marshalling  of 
assets  cannot  be  said  in  any  way  to  contribute  to  carry  into  effect 
any  supposed  intention  of  the  testator.  I  apprehend,  therefore, 
that  there  is  no  principle  of  Equity  which  would  warrant  the  view 
of  the  devisees,  or  place  them  in  a  better  position  than  they  would 
have  been  in  if  no  lapse  had  taken  place;  and  I  mention  this 
because  it  was  suggested  by  Mr.  WaUh  that  the  rule  of  marshal- 
ling against  the  heir,  in  favour  of  the  devisee,  was  a  merely  arbitrary 
rule,  and  was  to  be  carried  into  effect  in  all  cases,  independently 
of  any  other  reason  for  doing  so,  except  that  it  is  the  rule.  The 
case  of  Williams  v.  ChiUy  decided  that  an  heir  taking  by  lapse 
was  in  no  better  position  than  the  heir  taking  after-acquired  estate, 
or  taking  what  was  never  intended  to  be  devised ;  and  this  seems 
to  me  to  be  a  natural  consequence  of  the  rule.  The  Court,  in 
fact,  will  lay  hold  of  all  property  which  is  not  disposed  of  in 
fact  (whether  it  is  intended  to  be  or  not),  so  as,  if  possible,  to 
give  the  devisee  what  the  testator  meant  for  him,  viz.,  the  estate 
in  its  integrity.  I  cannot,  however,  reconcile  this  case  with  Wood 
V.  Ordisk  (a).  In  that  case  there  were  after-acquired  estates 
imd  a  lapsed  devise,  both  of  which  the  heir  took.  The  former 
were  not  sufficient  to  pay  the  debts;  and  then  the  question  arose 
whether  the  latter  should  bear  the  debts  in  exoneration  of  the 
estates  which  were  effectually  devised,  and  the  Court  decided 
in  the  negative.  The  case  was  peculiar,  inasmuch  as  the  lapse 
was  of  an  undivided  share  of  a  remainder  expectant  on  a  life  estate 
created  by  the  will;  and  the  Court  considered  that,  as  the  life 

(a)3&&0.125. 


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CHANCEBT  BEPOBTS.  145 

estate  was  protected,  the  remainder  in  the  whole  ought  to  to        1860. 

T    JS    Cotiri 

be  considered  as  standing  in  the  same  eqoitj,  notwithstanding     « — 1^ '* 

/fi  re 
that  the  devise  of  two  shares  took  effect  and  the  third  failed.     I  kathbobnb 

do  not  think,  for  the  reasons  I  have  mentioned,  that  either  of      ,"; — 

JudgmeKi. 

these  cases  governs  the  present.  This  case  more  resembles  Fisher 
y.  Fisher  (a).  They  are,' in  fact,  identical,  except  that  the  general 
residoarj  estate  was  made  a  primary  fund  to  pay  the  debt,  so 
as  to  exonerate  the  personalty.  But  thai  circumstance  was  im- 
material, as  the  question  was  not  between  the  realty  and  the 
personalty,  but  between  different  shares  of  the  really,  as  to  one 
of  which  there  has  been  a  lapse ;  and  the  Court  held  that  all  the 
shares  were  in  the  same  position,  as  the  testator  merely  intended 
each  share  to  be  a  share  <^  the  surplus  after  paying  debts.  In 
this  case,  therefore,  the  debts  must  be  distributed*  rateably  over  the 
real  and  chattel  property,  and  one-fourth  of  the  residue  of  the 
real  must  go  to  the  heir,  and  one-fourth  of  the  residue  of  the 
chattels  to  the  next-of-kin. 

(a)  2  Keen,  610.      , 


In  the  Matter  of  the  Estate  of 
ROBERT  WILLIAM  JACKSON,  Owner  and  PeHHoner.  ^^g^ 

Jaii  15. 

Mb.  J.  H.  RicHABDS  moved,  on  behalf  of  Sir  Capel  Molyneux,  that  in  the  conrer- 

sionofaleaM 
there  should  be  inserted  in  the  conversion  order  of  a  lease  for  lives  for  lives  ranew- 

renewable  for  ever,  ordered  to  be  sold  in  this  matter,  and  the  lessor's  the  Landed 

interest  in  which  was  vested  in  the  said  Sir  C.  Molyneux,  and  the  ^yi  make  no 

lessee's  interest  in  the  said  R.  W.  Jackson,  a  covenant  giving  to  the  ^J^JJ^^^  ^J 

landlord  the  right  of  pre-emption,  or,  in  case  of  the  omission  of  the  ^"^^^J^^ 

said  covenant,  that  compensation  should  be  given  to  the  said  Sir  C.  ****2SMrt^  *^* 

Molyneux,  by  way  of  increased  rent    .  hi&.  ^^®  .^^" 

^  '    ^        ^  lordthenghtof 

The  lease  in  question  was  dated  the  6th  of  February  1764,  and  preemption. 
VOL.  11.  19 


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146 


CHANCEEY  REPORTS. 


1661. 
X.  E.  CowrL 

In  re 
JACKSON. 

Statement, 


Argument. 


was  made  between  Robert  Sibthorpe,  of  the  one  part,  and  John 
Watson,  of  the  other  part,  for  three  lives,  with  a  covenant  for 
perpetual  renewal  thereof,  and  comprised  part  of  the  lands  of 
Teemore,  in  the  county  of  Armagh,  at  the  yearly  rent  of  £41.  98., 
with  a  renewa^  fine  of  £6.  6s.  on  the  fall  of  each  life.  The  said 
lease  contained  a  covenant  on  the  part  of  the  said  John  Watson, 
in  the  following  words : — *'  And  the  said  John  Watson,  for  himself, 
his  heirs  and  assigns,  doth  further  covenant,  promise  and  grant, 
to  and  with  the  said  Robert  Sibthorpe,  his  heirs  and  assigns,  by 
these  presents,  that  the  said  John  Watson,  his  heirs  and  assigns, 
shall  not  sdl  or  depart  with  his  or  their  estate  therein  unto  any 
person  or  persons  whatsoever,  without  the  consent  of  the  said 
Robert  Sibthorpe,  his  heirs  or  assigns,  until  he  or  they  have 
had  a  first  refusal  thereof." 

By  deed  poll,  dated  the  8th  of  June  1789,  the  said  John  Watson, 
in  consideration  of  £400,  granted  to  Robert  W.  Jackson,  the  father 
of  the  owner  and  petitioner,  his  heirs  and  assigns,  the  said  part 
of  the  lands  of  Teemore  so  demised  by  the  lease  of  1764. 

The  last  renewal  was  dated  the  I7th  of  March  1820,  and  was 
made  by  Thomas  Molyneux,  grandfather  of  the  said  Sir  C.  Moly- 
neux,  to  the  said  R.  W.  Jackson.  This  renewal  was  not  produced 
in  Court;  and  it  did  not,  therefore,  appear  whether  the  above- 
mentioned  covenant  was  expressly  inserted  therein,  or  whether  the 
renewal  was  made  subject  to  the  subsisting  covenants  in  the  original 
indenture  of  lease.  Mr.  Richards  did  not  press  for  the  insertion 
of  the  covenant,  but  only  for  an  increase  of  rent,  and  referred  to  the 
5th  section  of  the  Renewable  Leasehold  Conversion  Act.  Counsel 
also  relied  on  a  case  laid  before  Messrs.  Brassington  &  Gale,  sur- 
veyors, and  their  opinion  upon  it,  in  which  they  stated  that,  from 
the  peculiar  situation  of  the  land  (being  in  the  middle  of  other 
property  of  Sir.  C.  Molyneux),  the  omission  of  the  covenant  was 
a  loss  to  the  landlord  equivalent  to  two  years'  purchase, 

Mr.  Frazer^  for  the  owner. 

The  principle  of  this  opinion  is  quite  erroneous.  The  lands  have 
been  assigned  several  thnes;  and,  it  must  now  be  presumed,  with 
the  consent  of  the  lessor. 


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LOKOFIBLD,  J. 

I  think  that  the  5th  seotion  of  the  Renewable  Leasehold  Conver- 
sion Act  was  framed  to  meet  cases  like  the  present,  and  that,  there- 
fore, the  lessor  is  entitled  to  compensation  for  the  non-insertion  of 
the  covenant  in  the  conversion  order,  so  far  as  he  can  show  that 
its  omission  canses  any  injury  to  the  reversion.  But  what  is  the 
amount  of  injury  that  its  omission  causes  ?  I  have  every  respect 
for  the  opinion  of  such  eminent  gentlemen  as  Messrs.  Brassington 
and  Gale ;  but  I  think  that,  in  this  case,  they  have  framed  their 
opinion  on  an  entirely  erroneous  basis.  The  value  of  this  covenant 
must  be  calculated  on  the  ordinary  arithmetical  principles  which 
regulate  the  value  of  future  contingent  interests.  I  think  two  years' 
purchase  is  an  absurd  estimate.  I  must  be  guided,  in  my  calcu- 
lation, by  two  principles ;  firstly,  the  probability  of  the  occurrence ; 
and,  I  think,  it  would  be  found  that,  in  fifty  cases,  the  landlord 
might,  perhaps  in  one,  have  availed  himself  of  a  covenant  like  the 
present ;  secondly,  by  what  is  called,  in  analogy  to  the  language  of 
insurance,  the  discounting  principle,  and  which,  in  this  case,  is  the 
length  of  time  which  would  probably  elapse  without  the  landlord 
taking  the  benefit  of  the  covenant ;  as,  for  example,  this  covenant 
has  been  in  .existence  for  ninety-six  years,  without  the  landlord 
having  taken  advantage  of  it.  I  think,  therefore,  that  no  sub- 
stantial loss  will  be  sustained  by  the  owner  of  the  reversion  by 
the  non-insertion  of  this  covenant.  Probably,  by  reference  to  a 
table  of  logarithms,  the  loss  might  be  estimated  at  a  farthing 
a-year.* 

*  By  coiuent  of  the  parties  the  rent  was  increased  by  one  pexmy  a-year. 


1861. 
Z.  E.  Court 

In  re 
JACKSON. 

Judgment. 


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1860. 
Ch,  Appeal, 


Nov,  8,  9. 

Wh«re  a  pur- 
chaser is  ia 
possessioii  of 
lands,  under 
an  ezecated 
convejance, 
and  part  of  the 
purchase- 
money    has 
been  secured 
bj  a  bond,  the 
purchaser  maj 
come    into 
Equity  to  hare 
it  employed  in 
discharge  of  an 
arrear  of  head- 
rent  due  at 
the  date  of  the 
conreyance, 
and  is  not  con- 
fined to  his 
remedy  at 
Law»  on  the 
covenants  in 
his   conrey- 
ance. 

Statement, 


Court  ot  Appeal  in  tfjbanters. 

WOODS  V.  MARTIN  and  others. 

This  was  an  appeal  from  a  decretal  order  of  the  Master  of  the 
Rolls,  dated  the  11th  of  June  I860.  The  facts  of  the  case  were  as 
follows: — By  indenture,  dated  18th  of  November  1858,  made 
between  Patrick  Martin,  of  the  one  part,  and  William  Woods,  of 
the  other  part,  reciting  a  lease  of  1836,  firom  Greorge  Mathews  to 
John  Martin,  of  a  farm  of  land,  in  the  county  of  Down,  for  two 
lives,  still  in  being,  subject  to  the  yearly  rent' of  £29.  14s.  3^., 
and  that  Martin's  interest  had  become  vested  in  the  said  Patrick 
Martin,  who  had  agreed  to  convey  the  same  to  said  William  Woods, 
clear  from  all  incumbrances,  for  the  sum  of  £350,  it  was  witnessed 
that,  in  consideration  of  that  sum,  therein  recited  to  have  been  paid 
by  the  said  William  Woods  to  the  said  Patrick  Martin,  the  lands 
were  thereby  conveyed,  subject  to  the  rents  and  covenants  in  the 
lease,  to  the  said  William  Woods ;  and  said  indenture  contained 
Covenants  for  title,  quiet  possession,  freedom  from  incumbrances  fu[id 
further  assurance. 

Contemporaneously  with  the  execution  of  said  indenture,  Wil- 
liam Woo4s  paid  to  Patricia   Martin   the   sum   of  £100  in  cash, 
being  part  of  the  consideration  of  £350,  mentioned  in  said  inden- 
ture ;  and  William  Woods,  with  Thomas  Woods  and  Isaac  Lindsay  - 
as  his  sureties,  at  the  same  time  executed  to  the  said  Patrick  Martin 
their  i)ond  and  warrant  of  attorney,  bearing  equal  date  with  said 
indenture,  in  the  sum  of  £500,  conditioned  for  the  payment  of  £250 
with  interest,  the  balance  of  said  purchase-money.     The  petitioner 
stated  that  an  unwritten  agreement  had  been  made  at  the    time 
of  the  execution  of  said  bond,   that  William   Woods   was   to    be 


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allowed  full  credit,  out  of  the  amount  therebj  secured,  for  auj  in- 
cumbrances which  should  appear  against  .said  lands,  and  especially 
for  an  arrear  of  rent  which  the  said  Patrick  Martin  admitted  to  be 
due  thereon,  and  which  he  then  represented  to  the  said  William 
Woods  only  amounted  to  a  sum  of  about  £40.  Immediately  after 
the  execution  of  said  indenture  and  bond,  the  said  William  Woods 
entered  into  possession  of  said  form ;  but  upon  a  verbal  stipulation 
with  the  said  Patrick  Martin,  that  his  doing  so  was  not  to  be  consi- 
dered as  waiving  his  right  to  have  such  incumbrances  paid  off,  and 
discharged  out  of  such  purchase-money.  WUUam  Woods,  upoir 
making  inquiry  from  the  reversioner  of  said  lands,  as  to  the  amount 
of  rent  due  thereout,  was  informed  that  it  amounted  to  £90.  9s.  8^. ; 
but  that,  if  same  were  at  once  paid,  a  composition  of  £67  would  be 
accepted ;  but  on  Woods  applying  to  Patrick  Martin,  he  refused  to 
pay,  or  to  allow  William  Woods,  any  larger  sum  than  £40,  which 
the  reversioner  refused  to  accept,  and  brought  an  ejectment  for  non- 
payment of  the  rent  up  to  the  1st  of  November  1856,  against  both 
the  said  William  Woods  and  Patrick  Martin,  who  were  duly  served 
therewith ;  upon  which  he,  on  the  26th  of  March  18599  obtained  a 
decree  for  said  sum  of  £90.  9s.  8^,  with  costs,  which  decree  was 
executed  on  the  2drd  of  April  1859.  Patrick  Martin  not  only  still 
refused  to  allow  the  said  William  Woods  to  pay  off  said  rent,  but 
threatened  to  issue  execution  upon  foot  of  a  judgment,  which  he 
had  entered  upon  said  bond,  against  both  the  said  William  Woods 
and  his  sureties,  unless  the  entire  amount  thereof  was  paid  to  him 
on  or  before  the  18th  of  May  1859,  when  the  stay  of  execution 
therein  would  expire. 

On  the  19th  of  May  1859,  William  Woods  filed  his  original 
cause  petition  in  this  matter,  against  Patrick  Martin,  steting  the 
foregoing  facts,  and  praying  for  an  injunction  to  restrain  the  said 
Patrick  Martin  from  issuing  execution  upon  said  bond  and  warrant, 
undertaking,  if  so  directed,  to  bring  in  and  lodge  to  the  credit  of  this 
matter  the  entire  amount  secured  by  said  bond ;  and  asking  a  decla- 
ration that  he  was  entitled  to  have  the  amount  of  said  rent  and  costs, 
and  all  other  incumbrances  affecting  said  lands,  at  the  the  date  of 


1860. 
Ch,  Appeal. 


Statement, 


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18fi0. 
Ch,  Appeal 


Statement. 


said  indenture  of  18th  November  1856,  paid  off  and  discharged  out 
of  the  amount  secured  by*  said  bond.  Upon  the  27th  of  May  1859> 
an  injunction,  until  further  order,  was  granted,  pursuant  to  the 
prayer  of  said  petition.  In  pursuance  of  the  terms  of  said  injunction 
order,  the  said  William  Woods  invested  a  sum  of  £250  in  Grovern- 
ment  stock,  and  transferred  the  same  to  the  credit  of  this  cause. 
Patrick  Martin  filed  his  answering  affidavit,  alleging  that  the  said 
William  Woods  agreed  to  become  the  purchaser  of  said  farm,  at  the 
sum  of  £350,  and  also  to  clear,  at  the  landlord's  office,  whatever 
arrears  of  head-rent  might  be  then  due ;  and  denying  that  it  was 
ever  agreed  that  credit  should  be  allowed  out  of  the  amount  of  the 
bond  given  for  the  balance  of  the  purchase-money,  for  any  incum- 
brance which  should  appear  against  said  lands,  or  any  arrear  of  rent. 
This  affidavit  further  stated,  that  judgment  had  been  entered  on 
said  bond,  and  registered  as  a  statutable  mortgage  against  the  lands 
of  the  conusors ;  but  that  the  said  Patrick  Martin  had,  by  inden- 
ture of  20th  April  1859,  assigned  said  statutable  mortgage,  and  all 
interest  therein,  to  the  said  John  Martin,  in  satisfaction  of  a  debt  of 
£200,  and  the  arrears  of  interest  thereon.  In  consequence  of  the 
allegations  contained  in  said  answering  affidavit,  the  petition  was, 
on  the  2nd  of  August  1859,  amended^  by  making  said  John  Martin 
and  others  respondents. 

On  the  hearing  before  the  Master  of  the  Rolls,  on  the  11th  of 
January  I860,  Patrick  Martin's  Counsel  having  insisted  that  the 
covenants  of  the  deed  of  18th  of  November  1858  had  not  been 
broken,  and  that  the  petitioners'  remedy,  if  any,  was  at  Law,  his 
Honor  directed  the  further  hearing  to  stand  over,  to  enable  the 
petitioners  to  bring  an  action  against  the  said  Patrick  Martin  on  the 
said  deed ;  and  an  action  of  covenant  having  been  brought  accord- 
ingly, Patrick  Martin  allowed  judgment  to  go  by  default;  but 
upon  the  assessment  of  damages,  the  said  Patrick  Martin  and  John 
Martin  were  examined  to  prove  that  there  was  only  £40  of  rent 
due  to  Mr.  Mathews ;  and  the  Sub-sheriff  having  let  this  evidence 
go  to  the  jury,  they  found  a  verdict  of  £40  for  petitioner. 

The  said  cause  petition  having  come  on  for  further  hearing  on 


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said  judgment  at  law,  and  tbe  Sheriff's  report  of  inquiry,  on  the 
11th  day  of  June  I860,  the  Master  of  the  Rolls  made  a  decretal 
order,  declaring  the  said  William  Woods  entitled  to  have  the  sum  of 
£92.  15s.  8d.,  being  the  amount  of  rent  and  costs  ascertained  by  the 
said  civil-bill  decree  to  be  due,  by  the  said  Patrick  Martin,  to  the 
head-landlord,  out  of  the  lands,  up  to  the  1st  of  November  1858, 
paid  off  and  discharged  out  of  the  amount  secured  by  the  said  bond 
for  £250;  and  further  declaring  the  assignment  of  the  judgment 
entered  on  the  bond,  and  of  the  statutable  mortgage  entered  thereon, 
fraudulent  and  void  as  against  the  petitioner  and  his  sureties ;  and 
ordering  that  the  injunction,  which  issued  pursuant  to  the  order  of 
tbe  27th  of  May  1859>  should  be  made  perpetual,  and  that  the  said 
John  and  Patrick  Martin  should  re-convey  the  lands  against  which 
they  had  so  registered  said  judgment  as  a  statutable  mortgage,  to 
the  said  William  Woods  and  his  said  sureties,  according  to  their 
respective  estates  and  interests  therein ;  and  declaring  the  said  Wil- 
liam Woods  entitled  to  his  costs  of  the  suit,  and  procuring  such 
satisfactions  and  re-conveyances  against  the  said  Patrick  Martin  and 
John  Martin,  when  taxed,  together  with  the  som  of  £21.  9s.  9d., 
the  taxed  costs  of  the  action  at  Law ;  and  further  declaring  that  the 
respondents  Thomas  Woods  and  Isaac  Lindsay  were  entitled  to  be 
paid  their  costs  by  the  said  William  Woods,  and  that  he  should 
have  them  over,  with  his  own  costs,  against  the  other  respondent ; 
and  directing  that,  after  pajrment  of  those  sums  out  of  the  stock 
standing  to  the  credit  of  this  matter,  the  balance,  if  any,  should  be 
transferred  to  the  said  Patrick  Martin. 

The   respondents   Patrick    and  John   Martin   having  appealed 
against  the  entire  of  this  decree — 


1860. 
Ch,',AppeaL 

WOODS 

MABTIN. 

StatemenL 


Messrs.  Brewster^  Lawty  and  Faloon,  on  behalf  of  William 
Woods  and  his  sureties,  in  support  of  it,  cited  Dart,  on  Vendors, 
p.  538,  and  TourtnUe  v.  Naish  (a),  to  show  that  when  the  convey- 
ance is  executed,  and  the  purchase-money  is  secured,  the  purchaser 
may  come  into  Equity  to  have  it  employed  in  discharge  of  newly 
discovered  incumbrances. 

(a)  3  P.  Wms.  306. 


Argument, 


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CHANCERY  REPORTS. 


V. 
MABTIN. 

Argument, 


I860.  The  AUomey-General,  with  whom  were   Messrs.  Warren  and 

Ch.  Appeal  j^  Fitzgibhon,  for  the  Martins,  reUed  on  Sug.  on  Ven.,  p.  684, 
WOODS  ^Yi\i  ed^  in  which  this  proposition  is  laid  down — "  It  seems  that  if 
the  conveyance  be  actaallj  executed,  the  purchaser  can  obtain  no 
relief,  although  the  money  be  only  secured."  It  is  true  that,  in 
TowrvilU  V.  Naish^  Lord  Hardwicke  says,  '*  Though  the  purchaser 
has  no  remedy  at  Law  against  the  pajrment  of  the  residue  for  which 
he  gave  his  bond,  yet  now  he  has  notice  of  an  incumbrance,  under 
which  circumstances  the  Court  would  stop  payment  of  the  money 
and  on  the  bond.^  .  But  that  is  an  extrajudicial  opinion  of  Lord 
Hardwicke,  and  not  the  point  decided  in  that  case,  which  was 
merely  that  notice  before  actual  payment  of  the  purchase-money  is 
equivalent  to  notice  before  the  contract;  for  which  Sir  E.  Sugden 
does  cite  it  as  an  authority,  at  page  1036  of  his  Vend,  and  Pmr.y 
11th  edition. 


The  Lo&D  Chan CEixoB. 
Judgment.  Whether  it  be  a  mere  dictum  or  decision  of  Lord  Hardwicke  in 

Tourville  v.  Naishj  we  think  it  both  good  law  and  good  sense ;  and, 
as  it  is  directly  in  point  in  the  present  casCi  we  will  act  vpon  it  and 
affirm  the  decree. 


Order, 


Mr.  Warren  then  submitted  that  the  costs  of  the,  appeal  ought 
not  to  be  given  against  the  appellant,  as  the  decretal  order  had  not 
given  credit  to  the  appellant  for  the  interest  which  accrued  on  the 
bond  between  its'  date  and  the  issuing  of  the  injunction,  and  because 
the  appellant  ought  not  to  have  been  ordered  to  pay  the  costs  of 
re-assigning  the  statutable  mortgage,  and  satisfying  the  judgment 
entered  upon  the  bond. 

The  petitioner's  Counsel  admitting  the  amount  of  interest  due, 
the  following  order  was  made: — 

Affirm  the  order  bearing  date  the  11th  of  June  I860,  except 
in  so  far  as  same  declares  the  said  William  Woods  entitled 
to  his  costs  of  procuring  satisfaction  of  the  aaid  judgment 


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and  re-convejance  of  the  statutable  mortgage  in  said  order        I860, 
mentioned,  against  the  said  P.  Martin  and  John  Martin ;        '    pp^o*, 
and  let  the  costs  thereof  be  borne  and  paid  by  the  said 
William  Woods ;  that  the  said  Patrick  Martin  is  entitled  to 
credit  for  a  sum  of  £6.  5s.,  being  a  half  year's  interest  upon        Order, 
the  bond  for  £350,  &c. ;  and  declare  the  said  William 
Woods  bound  to  give  credit  for  such  sum  out  of  the  amount 
decreed  to  him.    No  costs  of  appeal. 

Chancery  Appeal  Hearing  Book,  1,/.  385. 


TOL.  11.  20 


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CHANCERY  REPORTS. 


1660. 
RolU. 


Mmf  1. 
Nov.  20. 


KINSELLA  V.  CAFFREY. 


(In  the  RoU$.) 


Where  there    TiMOTHT  EnrsELLA,  bj  bis  will,  bearing  date  tbe  24tb  of  Septem- 

is  an  indefinite 

bequest  to  the  ber  1839,  bequeathed  to  each  pf  his   grand-nephews,  Laurence 

hediewithoat  Caffrej  and  Thomas  Caffrey,  respectivelj,  one  annuity  of  £50, 
i^T'c^dr^r  ^^^S^  ^^  ^^  diyidends  of  his  Goyemment  stock,  payable  during 
rottdoiwttfiJke  *^®*'^*v«fl  half-yearly,  at  the  times  of  the  payment  of  the  dividends 
by  impUcation.  ^^f  ^^  gj^^k^  ^j^i^  ^  ^ji^use  against  alienation ;  and  he  directed  that, 

Where  there 
is  a  bequest  to  on  the  death  of  either  of  them,  leaving  issue  lawfully  begotten,  his 

life,  and,  if  he  annuity  should  go  to  such  issue  equally ;  the  share  of  such  child  or 
haying  or  leav-  <^^il<^®n  as  should  happen  to  die  before  the  age  of  twenty-one  years, 
owiSeSd-  ^^  ^y  ^^  ^*y®  ^^  marriage,  to  go  to  and  be  equally  divided  amongst 
SSed^b^*'^'*'  *^®  survivor  or  survivors  of  such  issue,  during   their  respective 

plication.  lives  ;  and  if  but  one  child,  the  whole  of  said  annuity  of  £50  a-year 

Where  there 
is  a  bequest  to  to  go  to  such  only  child  for  life ;  and  in  the  case  of  the  death  of 

life,  and,  if  he  either  of  them,  Laurence  and  Thomas  Cafifrey,  without  lawful  issue 

haying  or  leay.  l^^ng  at  his  death,  he  ordered  that  his  annuity  should  go  to  the 

^r  and  there  s^'^^^®'  ^^^  1^^®»    ^^^  ^  <5*s®  ®^  *^®  death  of  both  his   grand- 

Se  wSnto  "^  nephews,  "  without  leaving  issue,  or,  leaving  such,  and  that  such 

raise  an  infer-  igg^^  should  die  before  the  age  of  twenty-one  years,**    in  either 

ence  in  favour  ^  ^  ^        i 

of  the  children, 

the  Court  is  at  liberty  to  take  them  in  connection  with  the  bequest  in  the  event  of 

tbe  parent  dying  without  haying  or  leaying  issue,  and  to  hold  that  the  children  are 

entitled  by  implication. 

A  testator  bequeathed  to  each  of  his  grand-nephews,  A  and  B,  an  annuity  for 
their  respective  Uyes,  and,  in  case  of  the  death  of  either  of  them,  leaying  issue,  he 
directed  that  the  annuity  of  him  so  dying  should  go  to  such  issue,  if  more  than  one, 
shwre*  and  share  alike ;  the  share  or  shares  of  such  child  or  children  as  should  die  . 
under  twenty-one  or  marriage  to  go  to  and  be  equally  divided  amongst  the  sur- 
yiyor  and  suryiyors  of  such  issue,  during  their  respectiye  natural  liyes;  and  if  but 
one,  the  whole  of  the  annuity  to  go  to  such  only  child  for  life  ;  and  in  case  of  the 
death  of  either  A  or  B,  without  layrfdl  issue  liying  at  his  death,  that  the  annuity  of 
him  so  dying  should  go  to  the  survlyor  for  his  life ;  and  in  case  of  the  death  of  both 
A  and  B,  without  leaying  issue,  or,  leaying  such,  and  that  such  issue  should  die 
before  tiie  age  of  twenty-one  years,  then,  after  the  death  of  the  suryiyor  of  such  issue 
of  A  and  B,  he  directed  that  the  said  two  annuities  should  sink  into  his  residual]^ 
personal  estate.  A  died  without  issue. — Held,  that  there  was  a  bequest,  by  imph- 
cation,  of  A's  annuity  to  the  children  of  B. 


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^ase,  and  immediately  after  the  death  of  the  survivor  of  such  issue, 
the  said  two  annuities  of  £50  a-jear  should  sink  into  and  form  part 
of  his  capital  stock  and  funds,  for  the  residuary  purposes  of  his  will ; 
and  he  bequeathed  the  residuary  fund,  subject  to  an  annuity,  to  his 
nephew  John  Kinsella. 

The  exact  terms  of  the  bequest  are  stated  by  his  Honor,  in  his 
judgment,  infra,  pp.  156,  et  seq. 

Timothy  Kinsella  died  shortly  after  his  will ;  and  a  bill  having 
been  filed  to  carry  the  trusts  of  the  will  into  execution,  by  a  decree 
in  the  cause,  bearing  date  the  18th  of  May  1847,  two  sums  of  stock 
were  set  apart,  and  directed  to  be  carried  to  a  separate  credit,  to 
answer  the  annuities. 

Thomas  Caffrey  left  Ireland  in  April  1847  ;  and  not  having  been 
heard  of  afterwards,  an  order  was  made,  on  the  13th  of  July  1858, 
referring  it  to  the  Master  to  inquire  and  report  whether  the  said 
Thomas  Cafifrey  was  living  or  dead ;  and  if  the  said  Thomas  was 
married,  and,  if  married,  whether  he  had  any  child  or  children.  The 
Master,  by  his  report,  dated  the  17th  of  February  1860,  found  that 
he  was  dead,  and  had  died  on  the  22nd  of  April  1847,  and  that  he 
was  not  married  at  the  time  of  or  previous  to  his  death. 

Laurence  Caffrey  died  on  the  19th  of  October  1857,  leaving  five 
children,  Thomas,  Marian,  Rosanna,  Laurence  and  John  Joseph,  all 
under  age. 

A  motion  was  now  made  by  John  Kinsella,  the  residuary  legatee, 
that  the  stock  set  apart  to  answer  Thomas  Caflfre/s  annuity  might 
be  transferred  to  him. 


1860. 
RolU. 


Statement., 


Mr.  S.  Ferguson  and  Mr.  Lindtay^  in  support  of  the  motion, 
contended  that,  on  the  death  of  Thomas  Caffrey,  his  anhuity  sank 
into  the  residue.  There  was  no  bequest  by  implication  to  the 
children  of  the  survivor.  In  order  to  create  a  gift  by  implication, 
a  clear  intention  to  that  effect  must  be  collected  from  the  will.  The 
intention  to  be  collected  in  this  will  was  rather  against  such  an  im- 
plication, for  both  annuities  were  to  go  over,  in  the  event  of  Thomas 
and  Laurence  dying  without  issue ;  and  there  was  no  reason  why 
one  should  not  go  over,  on  failure  of  issue  of  the  party  entitled 


ArgwMnt. 


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CHANCERY  REPORTS. 


1860. 

Rolls. 

*■  _' 

KIN8BLLA 
CAFFBRT. 
Argument. 


Nov,  20. 
Judgment. 


to  it :    Ranelagh  y.  Ranelagh  (a)  ;   Addison  y.  Busk  (b) ;    Toums 
y.  Ti^entworih(e)  ;  Sharks  y.  Restall{d). 

Mr.  Brewster  and  Mr.  Brereion^  contra,  contended  that  there 
was  a  clear  gift  by  implication.  The  residuary  legatee  was  to  take 
only  '^  in  case  of  the  death  of  both  my  grand-nephews- without  leay- 
ing  issue,  or,  leaying  such,  and  that  such  issue,*'  t.  «.,  the  issue  of 
both,  "  should  die  under  the  age  of  twenty-one  years."  So  long  as 
there  was  issue  of  either,  the  residuarylegatee  was  to  take  nothing : 
1  Jar.j  p.  462;  Scott  y.  Bargeman  {e);  Graves  y.  Holland  (f)\ 
Doyne  y.  Cartwright  (g)  ;  Doe  d.  Clifi  v.  Birkhead  (A). 


The  Master  of  teub  Rolls. 

The  question  which  arises  in  this  case  is,  on  the  construction 
of  the  will  gf  Timothy  Kinsella,  dated  the  7th  of  Noyember  1839- 
By  that  will  the  testator  directed,    "  That  by  and  out  of  the  annual 

interest,  diyidends  and  proceeds  of  my  Groyemment  stock, 

my  executors  hereinafter  named,  and  the  surviyor  of  them,  do  and 
shall,  yearly  and  eyery  year,  pay  unto  each  of  my  grand-nephews, 
Laurence  Caffrey  and  Thomas  Caffrey,  respectiyely,  one  annuity  or 
clear  yearly  sum  of  £50  sterling ;  the  same  to  be  charged  upon  and 
paid  and  payable  unto  them  the  said  Laurence  Caffrey  and  Thomas 
Caffrey,  out  of  the  annual  interest  and  diyidends  of  all  my  said 
Goyemment  stock  and  funds  which  shall  be  in  the  Bank  of  Ire- 
land at  the  time  of  my  decease,  or  out  of  a  sufficient  portion  of  such 
stock  and  funds,  which  I  order  and  direct  my  executors  to  set  apart 
and  inyest,  for  the  purpose  of  securing  unto  my  said  two  grand* 
^  nephews,  Laurence  Caffrey  and  Thomas  Caffrey,  the  said  annuities 

of  £50  each,  so  by  me  bequeathed  to  them  respectiyely 

The  said  annuities  or  annual  sums  of  £50  each  to  be  paid  and  pay- 
able to  the  said  Laurence  Caffrey  and  Thomas  Caffrey,  for  and 
during  their  respectiye  natural  liyes,  by  tv^o  equal  half-yearly  pay- 


(a)  l2BeaY.20O. 

(c)  U  Moo.,  P.  C.  C,  543. 

C«)  2  P.  WmB.  6a 

{jj)  I  CoU.  482. 


(6)  14  Beav.  459. 
((/)  24  Bear.  21. 
('/J  11  It.  Eq.  Rep.  284. 
(Ji)  4£xch.Rep.  110. 


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mente,  at  the  reapective  times  of  the  payment  of  the  interest  and 
diYidends  upon  mj  said  Grovernment   stock   and   funds,  or  upon 

the  portion  thereof  to  be  set  apart  for  that  purpose And 

my  will  and  desire  is,  that  the  said  Laurence  Caffrej  and  Thomas 
Cafirey,  or  either  of  them,  shall  not  sell  or  dispose  of  his,  her  or 
their  said  annuity  to  any  person  or  persons  whatsoever ;  and  in  case 
they,  or  either  of  them,  shall  sell  or  dispose  of  the  same,  then  and 
in  such  case,  I  order  and  direct,  and  my  will  is,  that  the  annuity  of 
him  so  selling  or  disposing  of  the  same  shall  go  to  the  other  of  the 
said  annuitants  who  shall  not  sell  or  dispose  of  the  same ;  and  in 
case  of  the  death  of  either  of  them,  the  said  Laurence  Caffrey  and 
Thomas  Cafirey,  leaving  issue  lawfully  begotten,  then  I  order  and 
direct  that  the  said  annuity  of  £50  a-year  of  him  or  them  so  dying 
shall  go  to  such  issue,  if  more  than  one,  share  and  share  alike ;  the 
share  or  shares  of  such  child  or  children  as  shall  happen  to  die  before 
the  age  of  twenty-one  years,  or  day  or  days  of  marriage,  to  go  to 
and  be  equally  divided  amongst  the  survivor  and  survivors  of  such 
issue  during  their  respective  natural  lives ;  and  if  but  one  child, 
then  the  whole  of  said  annuity  of  £50  a-year  to  go  to  such  only 
child,,  for  and  during  the  term  of  his  or  her  natural  life ;  and  in 
case  of  the  death  of  either  of  them,  the  said  Laurence  Cafirey  and 
Thomas  Cafirey,  without  lawful  issue  living  at  his  death,  then  I 
order  and  direct  that  the  annuity  of  him  so  dying  shall  go  to  the 
survivor  of  them,  the  said  Laurence  Caffirey  and  Thomas  Caffrey, 
for  and  during  the  term  of  his  natural  life." 

Before  adverting  to  the  clause  which  next  follows,  under  which  it 
is  said  that  there  was  a  bequest  by  implication,  of  Thomas  Caffirey's 
annuity  to  Laurence  Caffrey's  children,  it  may  be  convenient  to 
state  the  facts  to  which  I  shall  now  advert,  and  to  consider  shortly 
the  effect  of  the  bequests  I  have  already  read. 

It  is  found  by  a  report  of  Master  Brooke,  dated  the  17th  of 
February  I860,  that  Thomas  Cafirey  died  upon  the  22nd  of  April 
1847,  and  that  he  never  was  married.  Laurence  Caffrey  survived 
Thomas  Caffrey,  and  died  in  the  month  of  October  1857,  leaving 
Catherine  Caffrey  his  widow  (lyho  has  taken  out  administration  to 
the  said  Laurence  Caffrey),  and  several  minor  children.    Laurence 


1860. 
EoU». 


Judgment. 


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Judgwunt* 


Cafftej  received  both  annoities  of  £50  a-year,  during  his  lifetime. 
Now  the  short  sabstance  of  the  beqaest  of  Thomas  Caffrej's  annaitj 
of  £50  a-year  (which,  on  the  one  hand,  is  claimed  by.the  children 
of  Laurence,  and,  on  the  other  hand,  by  John  Kinsella,  the  resi- 
duary legatee,  under  the  clauses  m  the  will  to  which  I  shall  just 
now  advert)  is  as  follows : — That  annuity  of  £50  a-year  was  be- 
queathed to  Thomas  Caiirey  for  his  life.  The  non-alienation  clause 
need  not  be  referred  to,  as  there  was  no  alienation  of  the  annuity. 
If  Thomas  Caffrey  had  left  issue  living  at  his  death,  which,  under 
the  term%  of  the  bequest,  I  think  meant  children  (a),  the  annuity  of 
£50,  bequeathed  to  the  said  Thomas  Caffrey  for  life,  was  to  go 
amongst  his  children  ;  and  if  any  died  under  twenty-one,  the  sur- 
vivors were  to  become  entitled,  during  their  respective  natural  lives, 
and  if  but  one  child,  the  whole  of  the  annuity  was  to  go  to  such 
child,  for  the  term  of  his  natural  life.  The  effect  of  this  part  of  the 
will  is,  that  Thomas'  children  (if  he  had  been  married  and  left 
children)  would  have  only  been  entitled  for  their  respective  lives. 
By  the  provision  of  the  will  which  next  follows,  Thomas  Caffrey's 
annuity  (in  the  event  which  happened,  of  the  said  Thomas  dying 
without  issue  living  at  his  death)  was  bequeathed  to  the;  said 
Laurence  Caffrey  for  his  life.  Now  it  will  be  observed  that 
there  was  no  express  bequest  of  Thomas  Caffrey's  annuity  to  the 
issue  or  children  of  Laurence ;  and,  therefore,  the  validity  of  their 
claim  depends  on  this,  whether  the  clause  which  I  shall  now  read 
gave  Thomas  Caffrey's  annuity,  by  implication,  to  the  children  of 
Laurence,  Laurence  being  dead  ?  That  clause  is  as  follows : — *'  And 
in  case  of  the  death  of  both  my  grand-nephews,  without  leaving 
issue,  or,  leaving  such,  and  that  such  issue  should  die  before  the  age 
of  twenty-one  years,  in  either  of  which  cases,  and  from  and  imme- 
diately afler  the  decease  of  the  survivor  of  such  issue  of  the  said 
Laurence  Cafirey  and  Thomas  Caffrey,  I  order  and  direct,  that  said 
two  annuities  of  £50  a-year  shall  sink  into  and  fbrm  part  of  my 
capital  stock  and  funds  for  the  residuary  purposes  in  this  my  will 
mentioned." 

With  respect  to  those  residuary  purposes,  an  annuity  of  £25  was 

Ca)  See  Rhodes  ▼.  Rhodes  (27  Bear.  413). 


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bequeathed  to  Mary  Marphy,  charged  on  the  testator's  Govemment 
stock ;  and  after  some  other  bequests  of  sums  of  Government 
stock,  there  is  the  following  residuary  clause: — "And  as  to,  for 
and  concerning  all  the  rest,  residue  and  remainder  of  my  said 
capital  stock  and  funds  which  shall  be  in  the  Bank  of  Ireland  at 
the  time  of  my  decease,  I  give  and  bequeath  the  same,  and  the  stock 
and  funds  upon  or  in  which  the  same  shall  be  invested,  unto  my 
said  nephew  John  Elinsella  (subject  to  the  payment  of  the  annuities 
and  legacies,  and  the  interest  and  dividends  thereon,  as  hereinbefore 
mentioned),"  for  his  life,  and,  after  his  death,  to  the  children  of 
John  Kinsella  living  at  his  death,  as  in  the  will  mentioned ;  *'  and 
as  to  the  rest,  residue  and  remainder  of  all  my  property  and  effects, 
of  whatever  nature  or  kind  soever,  not  hereinbefore  dbposed  of,  I 
give,  deviae  and  bequeath  the  same  unto  my  said  nephew  John  Kin- 
sella,  to  be  disposed  of  by  him.  as  he  shall  think  fit."  John  Kinsella 
and  another  person  were  named  executors,  and  proved  the  will. 

With  respect  to  the  question  whether  the  children  of  Laurence 

Caffrey  became  entitled  by  implication  to  Thomas  Cafirey's  annuity 

of  £50,  there  is  some  difficulty,  having  regard  to  the  authorities. 

In  Ra$ulagh  v.  Banelagh  (a),  pecuniary  legacies  were  severally 

given  to  A,  B,  C  and  D,  during  their .  natural  lives,  and,  in  case 

of  the  denth  of  any  of  them  without  legitimate  issue,  his  proportion 

was  to  be  divided  amongst  the  survivors.     A  died,  leaving  children. 

It  was  held  that  they  did  not  take  by  implication,  but  that  on  A's 

death  his  legacy  fell  into  the  residue.    Lord  Langdale,  in  giving 

jndgiDent  in  that  cftse,  stated,  amongst  other  matters : — "  In  this  case 

the  le^tec;,  by  the  express  words  of  the  codicil,  takes  no  interest 

beyond  bis  life ;  and  if  there  be  no  further  gift  of  the  legacy,  the 

residuary  legatee,  who  takes  subject  to  all  that  is  not  otherwise 

well  given,  must  be  held  entitled.      The  issue  of  the  legatee  is 

named  in  the  codicil  only  in  the  description  of  contingency  on  which 

the  legacy  is  given  over ;  and  I  am  unable  to  find  anything  which 

assists   in  collecting  an  intention  to  give  to  the  children.     I  can 

collect  no  particular  intention  to  give  this  legacy  to  the  residuary 

legatee  (the  words  residuary  legatee  were,  I  presume,  used  in  mistake 

(a)  12  Beay.  200. 


1860. 
RoUs. 


Judgment, 


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I860. 
RolU. 


Judgment. 


for  children) ;  and  I  cannot  answer  the  question  proposed  bj  Sir 
Thomas  Plumer,  in  Ex  parte  RogerSy  why  the  children  were  named 
on  the  occasion  of  the  gift  over.  Bat  in  that  case  there  seems 
to  have  been  found  some  farther  reason,  which  does  not  here  exist, 
for  inferring  an  implied  gift ;  and  on  the  whole,  mj  opinion  is,  that 
the  legacy  falls  into  the  residue.  I  think  it  extremely  probable 
that  the  testator  did  mean  a  benefit  to  the  children,  but  si  voluU 
non  dixit,  I  think  there  is  not  sufficient  to  raise  the  implication, 
and  that  the  legacy  falls  into  the  residue."  Sparks  ▼.  RestaU  (a) 
decides  the  same  point.  In  the  case  of  Addison  t.  Bush  (6),  there 
was  a  bequest  of  residue  to  John  Lee ;  but  if  he  should  die  in  the  life- 
time of  the  testatrix,  without  leaving  children,  then  to  Charles  Lee. 
John  Lee  died  in  the  lifetime  of  the  testatrix,  leaving  issue.  It 
was  held  that  the  children  of  John  Lee  took  nothing  by  implication. 
That  case  differs  from  the  present,  in  this  respect,  that  the  devise 
to  John  Lee  was  not  limited  to  him  for  life ;  and  in  that  class  of 
cases  the  children  clearly  do  not  take  by  implication. 

In  Jarman  on  WtUs^  2nd  ed.,  vol.  1,  p.  473,  it  is  laid  down  as  fol- 
lows : — *'  In  several  cases  it  has  been  considered  that  a  bequest  to  a 
person,  and  if  he  shall  die  without  having  children,  or  without  leaving 
children,  which  means  without  having  had  a  child  bom,  or  without 
leaving  a  child  living  at  his  decease,  does  not  raise  an  implied  gift 
to  the  children,  but  the  parent  takes  an  absolute  interest,  defeasible 
on  his  dying  without  having  had  or  without  leaving  a  child,  as  the 
case  may  be.  The  rejection  of  the  implication  in  such  a  case  is  not 
(as  already  pointed  out)  productive  of  any  absurdity ;  for  it  supposes 
the  testator,  by  making  the  interest  of  the  legatee  indefeasible  on 
his  having  or  leaving  a  child,  to  intend  that  if  there  are  children  he 
shall  have  the  means  of  providing  for  them.''  Mr.  Jarman  refers  to 
most  of  the  authorities  on  the  subject.  The  case  of  Addison  v. 
Busk  was  affirmed  on  appeal,  under  the  name  of  Lee  v.  Busk  (c) ; 
and  the  principle  on  which  it  was  affirmed  was  that  adverted  to  by 
Mr.  Jarman  in  the  passage  I  have  read.  There  was  no  estate  for 
life  given  to  John  Lee.  The  devise  was  indefinite ;  and  on  the  prin- 

(a)  24  Beav.  218.  (b)  14  Bear.  469. 

(c)  2D.,  M.DeG.8ia 


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ciples  adverted  to  bj  Mr.  Jarman,  there  was    no  ground  for        1860. 

holding  that  the  children  took  an  estate  by  implication,  and  accord-     ^^..^i^^^^ 

iiiglj*   ift   ^&s  lield  ^l^at  there  was  an   intestacy.      The  case  of  ^^ 

JRanelagk  y.  Ranelagh  (a),   no  doubt,   appears  to  decide  that,   if     caffret. 

there  be  a  bequest  to  A  for  life,  and  if  he  die  without  leaving      judgmeid. 

children,   to  B,  and   A  dies  leaving  children,   the  children   will 

not  take  by  implication,  and  that  the  bequest  will  fall  into  the 

residue.     But  that  is  a  different  case,  and  involves  a  different 

question  from  that  decided  in  Addison  v.  Busk  (b),    Mr.  Jarman, 

in  his  work  on  Willsy  2nd  ed.,  vol.  1,  p.  478,  states: — "But  it 

seems  that  where  the  language  of  the  will  necessarily  confines 

the  interest  of  the  parent  to  his  life,  the  Court  will  lay  hold  of 

slight  circumstances  to  raise  a  gift  in  the  children,  and  thereby 

avoid  imputing  to  the  testator  so  extraordinary  an  intention  as 

that  the  devisee  or  legatee  over  is  to  become  entitled  if  the  first 

taker  have  no  child,  but  that  the  property  is  not  to  go  to  the 

child,  if  there  be  one,  or  its  parent."    Mr.  Jarman  then  refers 

to  Ex  parte  Rogers  (c).    In  that  case,  a  testator  having  by  his 

will  bequeathed  £1000  to  his  niece  A,  by  a  codicil,  reciting  that 

she  had  married  indiscreetly,  and  that  he  intended  to  withdraw 

the  legacy  out  of  her  power  to  dispose  of  it,  and  out  of  the 

power  of  her  husband  so  to  do,  did  therefore  direct  his  executors 

to  secure  his  niece  the  interest  of  the  said  £1000,  independently 

of  her  husband,  by  placing  out  that  sum  in  trust  for  his  niece; 

she  to  enjoy  the  interest  or  dividends  during  her  life,  and,   at 

her  decease  without  child  or  children,  the  principal  and  interest 

to  be  divided  amongst  such  of  her  sisters  as  should  be  then  living." 

Sir  T.  Plumer  was  of  opinion  that,  by  the  combined  effect  of  the 

will  and  codicil,  he  was  justified  in  saying  that  the  children  took 

the  legacy  by  necessary  implication.      Why,  he  asked,  did  the 

testator  mention  children  if  he  did  not  intend  them  to  take  ?     Mr. 

Jarman  then  proceeds  to  state  that  in  Ex  parte  Rogers  ^Uhe 

implication  was  evidently  aided  by  the  testator's  prefatory  ezpres- 

(a)  12BeaT.20O. 
(fr)  14  Beay.  459;  2  De  G.»  M.  &  G.  810. 
(c)  2  Madd.  449. 
TOL.   11.  21 


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RolU. 


Jud(fmetU. 


sions  in  the  codicil,  which  showed  that  he  did  not  intend  to 
deprive  his  niece  of  the  legacy  bequeathed  by  the  will,  bat  merely 
to  qn»Ufy  it  in  a  manner  suited  to  her  altered  condition.'*  Mr. 
Jarman  then  adverts  to  the  observations  of  Lord  Langdale  on 
that  case,  in  Randagh  v.  RaneUighf  and  to  Lord  Cranworth's 
observations  mLee  v.  Busk,  Now  the  case  before  Lord  Langdale 
appears  to  me  not  to  be  at  all  inconsistent  with  Ex  parte  Rogers. 
Ranelagh  v.  Ranelagh  only  decides  that,  if  there  be  a  bequest  to  A 
for  life,  and,  if  he  die  without  leaving  children,  to  B,  the  children, 
in  the  absence  of  anything  on  the  face  of  the  will  from  which  an 
intention  can  be  inferred  that  they  should  take,  will  not  be  entitled 
by«  implication  arising  solely  from  the  contingency  on  which  the 
devise  over  is  to  take  effect.  But  Sir  T.  Pluroer  appears  to  have 
held,  which  is  consistent  with  Ranelagh  v.  Ranelagh,  that  the 
Court  may,  from  slight  circumstances  in  connection  with  the  devise 
over,  imply  that  the  testator  intended  the  children  to  take.  With 
all  respect  for  Lord  Cranworth's  observations  on  Ex  parte  Rogers^ 
in  Lee  v.  Busk^  his  Lordship  appears  to  have  overlooked  the  dis- 
tinction that,  in  the  ktter  case,  the  bequest  to  the  parent  was  an 
indefinite  bequest,  and  not  a  bequest  for  life.  The  two  cases  are 
of  an  entirely  different  class,  and  are  distinguishable  on  the  very 
clear  grounds  stated  by  Mr.  Jarman, 

I  apprehend,  therefore,  that  the  authorities  may  be  classed  under 
three  heads : — First ;  where  there  is  an  indefinite  bequest  to  the 
parent,  and,  if  he  die  without  having  or  leaving  children,  to  B.  In 
that  case,  it  is  clear  that  the  children  do  not  take  any  interest  by 
implication.  Secondly ;  if  there  is  a  bequest  to  the  parent  for  life, 
and,  if  he  die  without  having  or  leaving  children,  to  B ;  if  the 
parent  dies  leaving  children,  they  are  not  entitled  by  implication. 
Thirdly ;  if,  however,  in  a  case  such  as  I  have  last  mentioned,  there 
are  matters  on  the  face  of  the  will  to  raise  an  inference  in  favour  of 
the  children,  the  Court  is  at  liberty  to  consider  these  circumstances 
in  connection  with  the  bequest'  over,  in  the  event  of  the  parent 
dying  without  having  or  leaving  children,  although  such  bequest 
over,  by  itself,  is  not  sufficient  to  justify  the  Court  inferring  a  gift 
in  favour  of  the  children. 


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If  this  be  the  result  of  the  authorities,  all  of  which  may  be        I860, 
reconciled  by  reducing  them  to  the  three  classes  I  have  stated,  the     v ^— ^ 

,      ,  -  .        ,  KINSBLLA 

question  is,  whether  there  are  circumstances  in  the  present  case,  ^^ 

taken  in  connection  with  the  gift  over,  to  justify  the  Court  ia  gaffrbt. 
holding  that  the  testator  intended  that  the  children  of  Laurence  judgment. 
Cafirej  should  take  the  £50  a-year  bequeathed  to  Thomas  Caffrey 
for  life,  he  having  died  unmarried,  and  consequently  without  child- 
ren ?  The  one  annuity  of  £50  was  bequeathed  to  Thomas  Caffrey 
for  life,  with  the  bequest  over,  which  I  iiave  stated,  to  his  children. 
The  other  annuity  of  £50  was  bequeathed  to  Laurence  Caffrey  for 
life,  with  the  bequest  over,  which  I  have  stated,  to  his  children.  In 
the  event  of  either  dying  without  liawful  issue  (which,  I  think, 
means  children)  living  at  his  death,  the  annuity  of  £50  of  the  party 
so  dying  was  to  go  to  the  survivor  of  them,  the  said  Thomas  Caffrey 
and  Laurence  Caffrey,  for  life.  The  annuity  of  Thomas  Caffrey 
was,  therefore,  in  the  event,  which  happened,  of  his  dying  without 
children  living  at  his  death,  to  go  over  for  a  certain  period,  at  all 
events,  viz.,  during  the  life  of  Laurence  Caffrey.  Then  follows  the 
provision  on  which  the  question  mainly  turns ;  that,  in  case  of  the 
death  of  Thomas  Caffrey  and  Laurence  Caffrey  "  without  leaving 
issue,  or,  leaving  such,  and  that  such  issue  should  die  before  the  age 
of  twenty-one  years^  in  either  of  which  cases,  and  from  and  imme- 
diately after  the  decease  of  the  survivor  of  such  issue  of  the  said 
Laurence  Caffrey  and  Thomas,  I  order  and  direct  that  said  two 
annuities  of  £50  a-year  shall  sink  into  and  form  part  of  my  capital 
stock  and  funds  for  the  residuary  purposes  in  this  my  will  men- 
tioned.** Now  John  Kinsella  daims,  as  residuary  legatee,  that 
which,  by  the  passage  of  the  will  which  I  have  read,  was  not  to  go 
over  and  form  a  fund  for  the  said  residuary  purposes,  in  the  events 
which  have  happened,  of  Laurence  Caffrey  having  left  children.  So 
also  the  limitation  over,  in  the  event  of  Thomas  and  Laurence  Caf- 
frey dying  without  leaving  issue,  or,  leaving  such,  that  the  issue 
should  die  under  twenty-one,  is  to  take  effect  only  in  the  event 
of  both  Thomas  and  Laurence  dying  without  leaving  issue,  or, 
leaving  such,  that  the  issue  should  die  under  twenty-one.  So  also, 
the  limitation  over  not  being  confined  to  Thomas  and  Laurence 


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KIN8ELLA 

r. 

CAFFRET. 

JudgmenU 


dying  without  leaving  issue,  or,  leaving  such,  and  that  such  issue 
should  die  before  the  age  of  twenty-one^  would  appear  to  negative 
the  idea  stated  bj  Lord  Eldon,  in  Doe  v.  Wilton  (referred  to  hj 
Mr.  Jarman)^  that  *'  nothing  is  given  to  them  (the  children)  bj  this 
will.  Thej  are  merely  named  in  the  description  of  the  contingency 
on  which  the  estate  was  to  go  over."  Why  was  the  event  of  their 
attaining  twenty-one  introduced  in  this  case,  if  they  were  intended 
to  take  nothing  prior  to  theif  attaining  twenty-one  ?  It  appears  to 
me  that  the  testator  intended  that,  on  the  death  of  Thomas  Ca£&ey 
without  leaving  children,  Thomas'  annuity  was  to  be  held  by  Lau- 
rence, in  the  same  manner  as  his  own,  and  that  Laurence's  children 
were  to  take  the  same  interest  in  Thomas'  annuity,  on  their  £Bither*8 
death,  that  they  admittedly  take  in  their  father's  annuity. 

I  am  of  opinion,  therefore,  on  the  whole,  that  this  case  falls  within 
the  third  class  of  cases  which  I  have  mentioned,  and  that  the  motiou 
of  John  EinseUa  should  be  refused.  It  is  a  case  of  difficulty ;  and  I 
shall  not  give  any  costs.* 

*  See  Egan  t.  MorrU  (L.  &  G.,  Ump.  Plan.»  297). 


Abo.  6. 


In  the  Matter  of  BURGESS'  TRUSTS, 
and  11  &  12  Ftc,  c.  78. 


Thk  petition  was  presented  by  Elizabeth  Jane  Allen,  formerly  the 
widow  of  William  Burgess,  claiming  as  such,  under  the  Statute  of 


A  ^aarriage 

setUemeDt 

contained  a 

clauBe    that      -i^v.     • 

the  provision    DistnbuUons,  her  share  of  a  sum  of  £1544.  Is.  Id.,  lodged  to  the 

and^intended^   credit  of  this  matter,  part  of  the  assets  of  the  said  William  Burgess, 


her  yidoity, 
should    be 
accepted, 
deemed  and 


By  the  settlement  executed  on  the  marriage  of  the  petitioner, 
then  Elizabeth  Jane  Toung,  with  the  said  William  Burgess,  and 


taken  in  foil    bearing  date  the  20th  of  August  1841,  certain  houses,  the  property 

lien  of  dower 

or  thirds,  to 

which  she  might  be  entitled  at  Common  Law,  or  otherwise  howsoerer. — HeU,  that 

she  was  barred  of  her  share  of  her  husband's  personal  estate,  under  the  Statute  of 

Pistributions* 


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1860. 
RoUs. 


In  re 
BUBGESS' 
TRUSTS. 


of  the  petitioner,  were  assigned  to  trustees,  in  trust  for  William 

Burgess,  for  life,  and,  after  the  death  of  the  petitioner,  to  the  use  of 

the  said  William  Burgess,  his  heirs,  executors  and  assigns ;  and  a 

sum  of  £500)  the  property  of  the  said  William  Burgess,  was  assigned 

to  the  same  trustees,  in  trust  to  permit  him  to  receive  the  interest     Siatmenu 

during  his  life,  and,  after  his  decease,  in  the  lifetime  of  the  petitioner, 

to  permit  her  to  receive  the  interest  for  her  life,  and,  after  her  death, 

in  trust  for  the  issue  of  the  marriage,  as  William  Burgess  should 

appoint,  and,  in  default  of  appointment,  equally ;  and  in  case  of  no 

issue,  in  trust  for  Richard  Burgess,  after  the  death  of  the  petitioner 

and  William  Burgess ;  and  it  was  agreed  and  declared  to  be  the 

true  intent  and  meaning  thereof,  'Hhat  the  provision  hereby  named 

and  intended  for  the  said  Elizabeth  Jane  Young,  in  the  event  of  her 

viduity,  shall  be  accepted,  deemed  and  taken  in  full  lieu  of  dower  or 

thirds,  to  which  she  might  be  entitled  at  Common  Law  or  otherwise 

howsoever.'* 

William  Burgess  died  intestate,  on  the  3rd  of  May  1846,  leaving        .     . 
the  petitioner  his  widow,  and  three  children,  the  survivor  of  whom      «    " 
was  Mary  Elizabeth  Burgess.    The  petitioner  claimed  one-third  of 
the  fund  in  Court,  as  his  widow,  and  also  a  moiety  of  the  shares  of 
her  deceased  children. 

The  provisions  of  the  settlement,  and  the  rights  of  the  several 
parties,  are  more  minutely  stated  in  his  Honor's  judjgment. 


Mr.  Warren^  for  the  petitioner. 

The  rule,  as  now  established  by  the  authorities,  is,  that  the 
widow's  right  to  her  share,  under  the  Statute'  of  Distributions,  can 
only  be  barred  by  express  words  in  her  settlement.  ''Thirds"  has 
been  held  not  to  mean  a  share  under  the  statute,  because  the  widow's 
share  varies ;  and  the  words  "  or  otherwise "  do  not  carry  tht»  re- 
striction further,  for  they  must  be  read  in  connection  with  the  word 
**  thirds : "  Berry  v.  Berrj/  (a)  ;  Druce  v.  Denison  (*) ;  64rJ^  v. 
Gwrly  {e)  ;  Colleton  v.  Garth  {d)  ;  Co.  Lit.,  p.  32. 

(a)  6  Ir.  Chan.  Rep.  497.  (6)  6  Ves.  885. 

(c)  2  Dr.  &  Wal.  463 ;  S.  C,  6  CI.  &  Fm.  759. 
{d)  6  Sim.  19. 


Argument. 


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1860. 
RoUs. 


Argument. 


Mr.  Lemnge,  for  Marj  Elizabeth  Burgess. 

The  word  **  provision,''  used  in  this  settlement,  is  an  index  to  the 
intention  of  the  parties,  which  was,  that  the  petitioner  should  have 
no  other  benefit  from  the  property  of  the  husband,  real  or  personal, 
except  that  provided  for  her  by  the  settlement.  That;  intention  is 
fully  carried  out  by  the  words  '*  or  otherwise,"  which  are  not  to  be 
found  in  any  of  the  authorities  relied  on,  and  would  be  insensible 
unless  they  are  applicable  to  a  share  under  the  Statute  of  Distribu- 
tipns:   Walker  V.Walker  (a). 


Nov.  6. 
Judgment, 


Mr-  Warren,  in  reply. 

In  Walker  v.  Walker^  Lord  Hardwicke  merely  decided  that  the 
widow  was  barred  of  her  free  bench.  The  word  "  otherwise  "  may 
have  effect  by  being  applied  to  the  widow's  right  to  lands,  under 
any  customary  right  or  statute. 


The  Mastek  of  the  Roixs. 

This  is  a  petition  under  the  Trustee  Relief  Act,  presented  by  James 
Bedford  Allen  and  Elizabeth  Jane  Allen  his  wife.  The  faots  appear 
to  be  as  follow : — ^By  indenture  of  settlement,  made  in  contempla- 
tion of  the  marriage  of  Richard  Burgess  with  Fhillis  Duckett,  dated 
the  26th  of  October  1829,  and  made  between  the  said  Richard 
Burgess,  of  the  one  part,  the  said  Fhillis  Duckett,  of  the  second 
part,  and  Richard  Mayberry  Duckett  and  Thomas  Murray,  since 
deceased,  trustees,  of  the  third  part,  two  policies  of  insuranoe  on  the 
life  of  Richard  Burgess,  for  £600  each,  and  also  a  sum  of  £1000, 
were  assigned  by  him  to  the  trustees,  upon  trust,  after  the  decease 
of  the  said  Richard  Burgess,  to  pay  the  interest  of  the  said  two  sums 
of  £500,  and  of  said  sum  of  £1000,  to  the  said  Fhillis  Duckett,  for 
her  life,  and,  after  her  decease,  in  case  there  should  not  be  issue  of 
the  marriage  at  the  time  of  her  death,  on  trust  to  assign  the-  said 
sums  to  the  executors,  administrators  and  assigns  of  the  said  Richard 
Burgess.     There  were  no  issue  of  the  marriage. 

Richard  Burgess  died  on  the  18th  of  October  1844,  having  pre- 
viously made  his  will,  dated  the  1 6th  of  November  1842,  and  thereby 

(a)  1  Vm.  54. 


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bequeathed  to  TVllliam  Burgess,  his  son  by  a  former  marriage,  the         1860. 

Roils, 
amount  of  the  two  pdicies,  subject  to  testator's  wife's  life  interest 


therein  ;  and  also  £500,  further  portion  of  the  property  in  his  said 
marriage  settlement,  subject  to  his  wife's  life  interest  therein. 
Fhillis  Burgess  proved  the  will  on  the  1st  of  March  1845.  Wil-  Judgment. 
liam  Burgess  surviTcd  his  father,  and  died  intestate  on  the  3rd  of 
May  1846,  in  the  lifetime  of  Fhillis  Burgess,  leaving  Elizabeth  Jane 
Burgess,  otherwise  Young,  his  wife,  and  two  sons,  Richard  Howard 
Burgess  and  William  Young  Burgess,  and  one  daughter,  Mary 
Elixabeth  Burgess,  him  surviving ;  and  the  petitioner  submits  that 
thereupon  the  petitioner  Elizabeth  Jane  Burgess,  now  Elizabeth 
Jane  Allen,  became  entitled  to  one-third  of  the  sums  bequeathed  by 
Richard  Burgess  to  William  Burgess,  subject  to  the  life  interest 
therein  of  the  said  Fhillis  Burgess,  and  that  the  children  of  William 
Burgess  became  entitled  to  the  remaining  two-thirds.  Administra- 
tion of  the  goods  of  William  Burgess  was,  on  the  23rd  of  May  1846, 
granted  to  the  said  Elkabeth  Jane  Burgess,  his  widow'.  Elizabeth 
Jane  Burgess  was  married  again,  and  is  now  the  wife  of  James 
Bedford  Allen,  and  they  have  filed  the  present  petition.  Richard 
Howard  Burgess  and  William  YotfUg  Burgess,  the  sons  of  the  said 
William  Burgess,  have  died  under  age,  without  having  been  mar- 
ried. Their  sister  Mary  Elizabeth  Burgess  is  now  about  fourteen 
years  of  age.  The  petition  states  that  the  shares  of  the  two 
deceased  ehildreii  passed,  under  the  Statute  of  Distributions,  in 
equal  shares,  to  their  mother,  the  petitioner  Elizabeth  Jane,  and  to 
their  sister,  the  said  Mary  Elizabeth.  Richard  May  berry  Duckett,  the 
surviving  trustee  in  the  settlement  of  the  26th  of  October  1829,  has 
transftsrred  to  the  credit  of  this  matter,  under  the  Trustee  Relief 
Act,  £1544.  Is.  lid.,  which  is  invested  in  £3  per  cent,  consols,  and 
which  represents  the  sums  bequeathed  to  William  Burgess  by  the 
said  Riehard  Burgess. 

The  question  which  arises  in  the  case  is,  whether  the  petitioner 
Elizabeth  Jane  Allen  was  barred  by  the  terms  of  the  settlement, 
executed  on  her  marriage  with  her  first  husband,  William  Burgess, 
from  claiming  one-third  of  the  sums  bequeathed  to  said  William 
Burgess  by  Richard  Burgess,  the  said  William  Burgess  having  died 


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burgess' 

TRUSTS. 
Judgment. 


intestate?  That  settlement  bears  date  the  20th  of  August  1841,  and 
was  made  between  Epaphroditus  Young  and  the  petitioner,  then 
Elizabeth  Jane  Young,  his  daughter,  of  the  first  part,  the  said 
Richard  Burgess  and  William  Burgess,  of  the  second  part,  and 
Thomas  Carpenter  and  Richard  Mayberrj  Duckett,  of  the  third 
part.  The  settlement,  after  other  recitals,  recites  that  it  was  agreed 
that  Elizabeth  Jane  Young  should  convey  her  interest  in  certain 
premises  therein  mentioned  to  the  trustees,  and  that  Richard  Burgess 
should  assign  a  sum  of  £600,  part  of  a  sum  charged  on  certain 
estates  in  said  settlement  mentioned,  to  the  trustees,  on  the  trusts 
thereinafter  mentioned  ;  and,  after  such  recitals,  the  indenture 
witnessed  that  the  said  Elizabeth  Jane  Young  assigned  her  interest 
in  the  said  premises  (describing  them)  to  the  trustees,  on  trust, 
from  and  immediately  after  the  death  of  the  said  Epaphroditus 
Young,  to  the  use  of  William  Burgess  and  his  assigns,  for  life ; 
and,  after  the  death  of  the  said  Elizabeth  Jane  Young,  to  the 
use  of  William  Burgess,  his  heirs,  executors,  administrators  and 
assigns.  I  think  there  is  some  error  in  the  copy  of  the  settlement 
sent  to  me,  as  to  the  part  I  have  just  read;  but  it  does  not  appear 
to  be  material,  having  regard  to  the  question  in  the  case.  The 
indenture  further  witnessed  that  Richard  Burgess  assigned  said  sum 
of  £600  to  the  trustees,  on  trust  to  permit  William  Burgess  to 
receive  the  interest  for  his  life,  and,  after  his  decease  in  the  lifetime 
of  the  said  Elizabeth  Jane,  to  permit  the  said  Elizabeth  Jane  to 
receive  the  interest  for  her  life ;  and,  after  her  death,  in  the  event 
of  there  being  issue  of  the  marriage,  the  £600  was  to  be  paid  to 
and  amongst  such  issue,  in  such  shares  as  the  said  William  Burgess 
should  appoint ;  and,  in  default  of  appointment,  amongst  the  issue, 
and,  in  case  there  should  be  no  issue  of  the  marriage,  on  trust 
to  pay  over  the  £600  to  Richard  Burgess,  after  the  death  of  the 
said  William  Burgess  and  of  the  said  Elizabeth  Jane.  The  deed 
then  contains  a  covenant  by  William  Burgess  to  use  his  best  exer- 
tions to  become  a  member  of  an  annuity  company  for  the  purpose 
of  promoting  annuities  for  widows,  and  thus  to  make  a  further 
provision  for  the  said  Elizabeth  Jane ;  and  then  follows  this  pro- 
vision, on  which  the  question  arises : — "  And  it  is  further  agreed, 


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by  and  between  all  tbe  parties  to  these  presents,  and  declared  to 
be  the  true  intent  and  meaning  hereof,  that  the  provision  hereby 
made,  and  intended  to  be  made,  for  the  said  Elizabeth  Jane  Young, 
in  the  event  of  her  viduity,  shall  be  accepted,  deemed  and  taken 
in  full  lieu  and  bar  of  dower  or  thirds,  to  which  she  might  be  entitled 
at  Common  Law,  or  otherwise  howsoever." 

The  petition  alleges  that  there  was  a  deed  of  settlement  executed 
on  the  marriage  of  the  petitioner,  but  that  it  does  not  deal  with  or 
affect  the  stock  to  the  credit  of  this  matter. 

With  respect  to  the  constrnctibn  to  be  put  on  the  clause  in  the 
settlement  which  I  have  last  read,  it  is  necessary  to  refer  to  the 
authorities  which  have  been  cited.  In  the  case  of  Colleton  v. 
Garth  (a),  a  rentcharge,  expressed  to  be  for  jointure,  "  and  in  lieu 
of  dower  and  thirds,  at  Common  Law,"  was  held  to  be  in  lieu  only 
of.  any  claim  which  the  wife  might  have  upon  her  husband's  lands, 
and  not  to  bar  her  claim  under  the  Statute  of  Distributions.  There 
was  no  reference  in  that  case  to  personal  estate.  In  the  case  of 
Slaiter  v.  Slatter  (6),  which  was  the  case  of  a  deed  of  separation, 
the  provision  made  for  the  wife  was  to  be  in  bar  '*of  all  dower 
or  thirds,  either  at  Common  Law  or  by  custom,  which  she  at  any 
time  thereafter  might  claim,  challenge  or  demand,  from,  out  of,  upon 
or  against  the  said  John  Slatter  (her  husband),  or  his  present  or 
future  estate,  real  or  personal."  The  authorities  bearing  on  the 
question  were  not  referred  to ;  and  Lord  Lyndhurst,  as  the  report 
states,  "  without  entering  into  any  detail  of  the  circumstances  of  the 
case,  expressed  his  opinion  that  there  w^s  nothing  in  the  deed  to 
deprive  the  wife  of  any  interest  to  which  she  was  entitled  in  the 
personal  estate  of  her  late  husband."  I  do  not  think  that  these  cases 
are  applicable  to  the  case  before  the  Court.  In  Druce  v.  Dent- 
$on{c\  the  wife  agreed  to  accept  the  provisions  in  the  settlement, 
^'  in  lieu,  bar  and  satisfaction  of  all  dower  or  thirds,  which  she  might 
otherwise  be  entitled  to  oat  of  all  the  real  and  personal  estate  of  her 
husband."  Lord  Eldon,  in  giving  judgment  (p.  394)  said : — *'  As 
to  the  word  thirds^  the  clear  intention  must  be  taken  to  mean  her 

(a)  6  Sim.  19. 

VOL.  11.  22 


18«0. 
BolU. 


Judgment, 


(6)  IT.  &C,Ex.Ca«.,28. 
(c)  6  Ves.  386. 


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I860. 

RolU. 
>.    ...     ■/ 

In  re 

burgess' 

TRUSTS. 
Judgment, 


interest  in  case  of  intestacy.  If  that  word  did  not  occur,  I  doubt 
whether  the  personal  estate  would  not  have  been  included  under  the 
word '  dower.'  The  word  thirds  is  never  used  accurately.  It  is  a 
sort  of  expression,  in  common  parlance,  descriptive  of  an  interest 
upon  an  intestacy." 

That  case,  it  is  said  by  Counsel  for  the  petitioner,  does  not 
apply ;  for  here  the  words  are,  "  in  lieu  and  bar  of  dower  or  thirds, 
to  which  she  might  be  entitled  at  Common  Law,  or  otherwise  how- 
soever ; "  and  there  is  no  reference  to  personal  estate.  Now,  if 
the  words  **  or  otherwise  howsoever "  had  been  omitted,  the  case  in 
6  Sim.  would  have  applied.  It  is  difficult,  however,  to  hold,  with- 
out acting  against  the  opinion  of  Lord  Eldon,  in  Druce  v.  Denison, 
that  the  words  "  thirds,"  at  Common  Law,  or  "  otherwise  howso- 
ever," did  not  include  the  claim  of  a  widow,  under  the  Statute  of 
Distributions. 

In  Gurfy  V.  Gurfy  (a),  the  jointure  was  declared  by  the  settle- 
ment to  be  in  full  lieu,  bar  and  satisfaction  of  any  dower  or  thirds 
which  the  wife  should  or  might  claim  at  Common  Law,  out  of  all 
or  any  of  the  said  estates,  real,  personal  or  freehold,  of  which  the 
intended    husband  was  then,  or  at  any  time  or  times  thereafter 
should  become,  entitled  to  or  possessed  of.     Lord  Plunket  com- 
mented on  the  case  in  6  Sim.y  on  the  case  before  Lord  Lyndhurst, 
and  decided  that  the  wife  was  barred  of  all  claim  on  the  personal 
estate  of  her  husband,  under  the  Statute  of  Distributions.     TJiat 
decision  was  affirmed  in  the  House  of  Lords  (6);  and  the  words 
**at  Common  Law,"  in  the  clause  in  question  in  the  case,  were 
relied  on  ;  but  the  House  of  Lords  considered  that  Druce  v.  Dent' 
son  was  applicable,  notwithstanding  the  introduction  of  these  words ; 
and  the  Lord  Chancellor,  in  giving  judgment,  said,  **  The  words 
*  Common  Law '  in  this  passage   must,  therefore,  be  construed  as 
equivalent  to  the  terms  *  according  to  the  general  law,'  *  according 
to  law,'  as  distinguished,  in  ordinary  parlance,  from  Equity  ;  and, 
unless  we  put  this  construction  on  the  clause,  the  word  personal^ 
which  is  contained  in  it,  would  have  no  effect  or  meaning  whatever." 
The  other  noble  and  learned  Lords  concurred  ;  and  it  is  to  be  kept 

(a)  2  Dr.  &  Wal.  463.  (6)  8  CL  &  Fin.  759. 


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in  mind  that  Lord  Lyndharst  was  the  Lord  Chancellor  when  that 
case  was  decided,  who  had,  as  Chief  Baron,  decided  the  case  in 
1  Young  Sf  CoL,  to  which  the  House  of  Lords  was  referred.  In 
the  present  case,  the  clause  does  not  refer  to  personal  estate ;  and, 
therefore,  the  same  reason  does  not  applj  for  giving  the  meaning  to 
the  words  "  at  Common  Law  "  which  was  given  to  these  words  in 
Gurfy  V.  Gurly ;  but  I  cannot  reject  the  words  in  this  case  "or 
otherwise  howsoever ; ''  and  I  am  of  opinion,  on  the  whole,  having 
regard  to  the  observations  of  Lord  Eldon,  in  Druee  v.  Denuan^ 
which  case  was  recognised  by  the  House  of  Lords,  in  Gurly  v. 
Gurly^  and  having  regard  also  to  the  judgment  of  the  Law  Lords 
in  the  latter  case,  that  the  petitioner,  Elizabeth  Jane  Allen,  was 
barred  by  the  settlement  of  1841  from  claiming  any  part  of  the 
personal  estate  of  her  first  husband,  William  Burgess,  under  the 
Statute  of  Distributions.  I  shall  make  a  declaration  to  that  effect ; 
and  I  presume  the  parties  will  agree  upon  an  order,  as  to  the  distri- 
bution of  the  fund,  subject,  of  course,  to  the  right  to  appeal  against 
my  decision.  It  would  be  desirable  that  there  should  be  a  schedule 
to  the  order,  explaining  the  distribution  of  the  fund.  I  apprehend 
that  administration  should  be  taken  out  to  the  two  sons  of  William 
Gurly,  before  the  order  is  made.  There  is  some  difficulty  on  the 
question  in  this  case ;  and  I  think  it  would  be  reasonable  that  the 
costs  of  the  parties  should  be  paid  out  of  the  fund  in  Court. 


1860. 
RolU. 

In  re 
BUaOESS' 
TRUSTS. 

Judgment, 


The  ATTORNEY-GENERAL  r.  EVANS. 


June  26, 27. 
Nov,  5. 


The  petition  was  presented  under  the  Acts  of  the  10  Ftc,  c.  32,  A  rentcharge 

granted  to  se- 
and  12  &  13  Ktc,  c.  59  (the  Land  Improvement  Acts),  for   the  care  a  loan  to 

an  owner  in 
fee,  subject  to  a  rent,  by  a  grant  prior  to  the  14  &  15  Fie.,  c.  20,  haa  priority  oyer 
the  rent,  nnder  the  Land  Improyement  Act,  10  Ftc,  c  32,  f.  38. 

Semble. — ^Where  the  loan  is  made  to  a  tenant,  the  rentcharge  has  not  priority  oyer 
the  rent  resenred  by  his  lease,  such  rent  not  being  a  charge  or  mcombrance,  within 
the  meaning  of  the  38th  section  of  the  Land  Improyement  Act.  < 


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172  CHANCERY  .REPORTS. 

1 860.  appointment  of  a  receiver,  to  pay  an  arrear  of  rentcharge  due  to 
the  Crown,  in  respect  of  loans  made  to  Richard  W.  Yielding  under 
the  said  Acts,  for  the  drainage  of  the  lands  of  Carrigkerrj.  The 
loans  were  made  in  1847.  At  that  time,  Richard  W.  Yielding 
was  seised  in  fee,  under  an  indenture  of  the  7th  of  June  1845, 
Statement,  wherehy  John  Evans  conveyed  the  said  lan<]^  to  the  said  Richard 
W.  Yielding,  his  heirs  and  assigns,  yielding  and  paying  thereout 
to  the  said  John  Evan^,  his  heirs  and  assigns,  the  rent  of  £100 
a-year,  payable  half-yearly.  The  deed  contained  a  clause  of  distress 
and  of  re-entry,  and  perception  of  the  rents  and  profits  until  the 
rent  should  be  satisfied,  and  a  covenant  for  payment  of  it. 

On  the  25tb  of  January  1860,  the  Court  made  an  order  for 
the  appointment  of  a  receiver,  without  prejudice  to  the  question 
of  priority  between  the  claim  of  the  Crown  for  the  rentcharge, 
and  that  of  John  Evans  for  the  rent  reserved  by  the  deed  of 
the  7th  of  June  1845.  The  sum  claimed  by  the  Crown  was 
£871.  A  motion  was  now  made  on  behalf  of  the  Attomey-Grene- 
ral,  that  the  receiver  should  pay  the  arrears  of  rentcharge  due 
to  the  Crown,  and  the  accruing  gales  thereof,  in  priority  to  the 
rentcharge  claimed  by  John  Evans.  A  cross-motion  was  also 
moved  by  the  latter  for  liberty  to  proceed  at  Law  for  recovery 
of  the  rent. 

Mr.  Serjeant  Lawson  and  Mr.  C  KeUy^  for  the  Attorney- 
General. 
Argument.  The  11th  section  of  the  10  Ktc,  c.  32,  provides  that  ^' Any 
owner  of  land^  within  the  meaning  of  this  Act,  who  may  propose 
to  improve  the  same  under  the  provisions  of  thb  Act,  may  apply 
to  the  Commissioners  of  Public  Works,  by  memorial,  for  a  loan;" 
and  the  word  "  owner,"  by  the  6th  section,  includes  "  any  persoa 
who  shall  be  entitled  to  lands  under  any  grant,  lease  or  any  other 
deed  or  assurance,  for  an  estate  in  fee.''  Yielding  was  owner 
within  that  definition;  and  he  applied  for  a  loan,  and  the  appli- 
cation and  notices  required  by  the  Act  were  published.  No 
objection  was  made  by  Evans.  The  security  given  for  the  loan 
was  the  land — not   any   particular  estate  in  it;  and,  under  the 


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38th  section,  the  rentcharge  had  priority  of  **  all  charges  and  incum- 
brances whatsoever,  and  whensoever  made,  save  and  except  quit- 
rents  and  rentcharges.  in  lieu  of  tithes,  and  also  save  and  except 
aU  charges  prior  in  date,"  under  the  6  &  6  Ftc,  c.  89.     The  rent- 
charge,  being  a  charge  on  the  land  itself,  and  not  on  any  particular 
estate  in  it,  would  have  priority  over  an  ordinary  rent-service, 
and  could  be  recovered  after  an  eviction  by  the  landlord  for  non- 
payment of  rent.     But  this  is  not  a  rent-service ;  it  is  a  rentcharge. 
Since  the  Statute  of  Quia  EmptoreSy  no  rent  can  be  recovered  on 
a  conveyance  in  fee:  ZtV.,  s.  217;  Co.  Lii.^  p.  143  b,  Harg.  note. 
Such  a  rent,   if  secured  by  a  power  of  distress,  is  a  rentcharge, 
and  a  new  purchase,  which  would  have  descended  to  the   heirs 
ex  parte  patema :   Co,  Lit,^  12  b ;  3  Pr.  on  Abstracts,  p.  64. 
The  legal  operation  of  the  deed  of  1845  was  a  grant  in  fee  by 
Evans,  and  a  grant  of  a  rentcharge  by  Yielding  out  of  the  fee 
so  conveyed  to  him.    The  rentcharge  was,  therefore,  a  charge  and 
incumbrance  on  Yielding's  estate :  Massy  v.  0*Dell  (a),  which  was 
a  stronger  case,  for  it  was  the  case  of  a  quit-rent  reserved  by 
the  Crown.    The  Renewable  Leasehold  Conversion  Act,  and  the 
14  <&  15  Fife.,  c.  20,  cannot  affect  the  question  ;  for  they  are  both 
subsequent  to  the  fee-farm  grant  of  1845. 


1860. 
RdU, 


Argument. 


Mr.  Brewster  and  Mr.  Jellett,  contra. 

This  is  a  case  of  great  hardship,  if  the  Crown  has  priority; 
for  the  money  was  not  expended  in  the  drainage  of  the  lands. 
Although  the  rentcharge  is  created  by  the  10  Vic.,  c.  32,  the 
several  Drainage  Acts,  beiqg  in  pari  mcUeriay  may  be  referred  to 
in  construing  its  operation.  By  the  first  Drainage  Act  (5  &  6  Vic, 
c,  89,  s.  110),  priority  is  given  to  the  sum  advanced  in  preference 
tOj  and  in  priority  over,  all  incumbrances  on  such  land.  That 
the  word  "incumbrance"  in  that  Act  was  used  in  its  proper 
sense,  and  contradistinguished  from  "rent,"  is  plain,  from  the  pro- 
viso: "Provided,  nevertheless,  that  any  quit  or  chief-rent  issuing 
thereout,  or  incumbrance,  &c.,  shall  have  priority  over  spch  charge, 
to  the  extent  of  the  value  of  the  lands  before  such  improvement  was 
(a)  9  Ir.  Chan.  Bep.  447. 


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CHANCERY  REPORTS. 


1860. 
RolU. 

ATTORNEY- 
GENERAL 
V. 
EVANS. 

Argument, 


effected ;  '*  and  a  chief  or  quit-rent  is  defined  '^  to  extend  to  and 
include  all  rent  or  rents  reserved  upon,  Or  payable  out  of,  or  in 
relation  to,  any  estate  or  interest  of  any  person  being  a  proprietor 
within  this  Act,  for  an  estate  or  interest  paramount  thereto."  Bj 
the  10  Ftc,  c.  32,  s.  38,  ''Every  such  rentcharge  to  be  secured  by 
virtue  of  this  Act  shall  take  priority  of  all  charges  and  incum- 
brances whatsoever,  and  whensoever  made,  except  quit-rents  and 
rentcharges  in  lieu  of  tithes ;  and  also,  save  and  except  all  charges 
prior  in  date,  if  any  existing,  under  and  by  virtue  of  an  Act  passed 
in  the  Session  of  Parliament  held  in  the  fifth  and  sixth  years  of 
the  reign  of  her  present  Majesty,**  &c.  This  reference  to  the 
Drainage  Act  shows  that,  by  the  10  Ftc.,  c.  32,  it  was  not  intended 
to  extend  the  security,  or  to  give  the  rentcharge  priority  over  a 
rent  annexed  to  an  estate  paramount  to  that  of  the  owner,  to 
whom  the  advance  was  made.  That  is  the  nature  of  the  rent 
in  this  case.  A  rent  reserved  on  a  grant  in  fee  is  different  from 
an  ordinary  rentcharge :  Brady  v.  Fitzgerald  {a).  If  there  is  not 
an  actual  there  is  a  quasi  relation  of  landlord  and  tenant :  Baker 
V.  Gostling  {h) ;  Cremen  v.  Hawkes  (c) ;  Pluck  v.  Digges  {d) ;  In 
the  matter  of  the  Estate  of  James  Tipping  {e)\  and  that  is  a 
difference  recognised  and  adopted  by  the  14  &  15  Ftc,  c.  20, 
which  gives  to  a  rent  secured  on  a  grant  in  fee  all  the  incidents 
of  a  rent-service,  except  ejectment  for  non-payment.  That  Act 
is  retrospective :  Major  v.  Barton  (f).  The  whole  scope  of  the 
Act,  and  in  particular  the  payment  of  the  sum  advanced,  in  twenty- 
two  years  (section  7)9  shows  that  the  security  was  to  be  the  interest 
of  the  party  to  whom  the  money  was  advanced.  If  it  were  intended 
to  secure  it  on  the  whole  fee-simple,  why  limit  the  time  within 
which  the  advapce  was  to  be  paid  off? 


The  Master  of  the  Rolls. 

Nov  h 

Judgment, .         A  motion  has  been  made,  on  the  part  of  the  Attomey-Greneral 
(in  pursuance  of  a  reservation  contained  in  an  order  of  the  Court,  of 


(a)  12  It.  Eq.  Rep.  278. 
(c)  8  Ir.  Eq.  Rep.  153,  503. 
(«)  2  It.  Jur.  172. 


(6)  1  Bing.,  N.  C,  19. 

(<0  1  H.  &  Br.  81, 

09  2  Ir.  Com.  Law  Rep.  28. 


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the  25th  of  January),  that  the  receiver  in  this  matter  should  pay 
the  arrears  of  rentcharge  due  to  the  Crown,  and  the  accruing 
gales  thereof,  and  the  petitioner's  costs,  in  priority  to  the  rentcharge, 
and  arrears  thereof,  claimed  by  the  respondent,  Johiji  Evans.  The 
petition  was  filed  in  this  case  under  the  Acts  of  the  10  Re, 
c.  32,  and  12  A  13  Vic.,  c.  59?  for  the  appointment  of  a  receiver, 
to  pay  the  arrear  of  rentcharge  due  to  the  Crown,  and  the  accruing 
gales  thereof,  payable  in  respect  of  loans  made  under  said  Acts; 
and  an  order  was  made,  on  the  25th  of  January,  appointing  a 
receiver;  but  the  respondent,  John  Evans,  who  claimed  to  be 
paid  a  rentcharge  or  fee-farm  rent  payable  to  him  out  of  the 
lands  over  which  the  receiver  was  appointed,  in  priority  to  the 
claim  of  the  Crown,  the  order  of  the  25th  of  January  concluded 
as  follows : — **  And  the  Court  doth  reserve  the  question  of  the  costs 
of  John  Evans  appearing  on  this  motion,  the  Court  not  at  present 
deciding  whether  the  rent  payable  to  him  out  of  the  said  lands 
has  or  has  not  priority  over  the  claim  of  the  petitioner  under 
the  Lands  Improvement  Act." 

The  present  motion  has  been  now  brought  forward,  the  receiver 
having  funds  in  his  hands;  and  the  question  which  arises  is, 
whether  the  claim  of  the  Crown  has  priority  over  the  claim  of 
John  Evans? 

The  facts  of  the  case,  so  far  as  they  are  material  to  the  con- 
sideration of  the  legal  question,  are  as  follow: — On  the  7th  of 
June  1845,  an  indenture  was  executed  by  and  between  the  said 
John  Evans,  of  the  one  part,  and  Richard  W.  Yielding,  of  the 
other  part,  whereby,  in  consideration  of  the  sum  of  £19919.  19s.  9d., 
paid  by  the  said  Richard  W.  Yielding  to  the  said  John  Evans, 
and  also  in  consideration  of  the  rents  and  covenants  thereinafter 
mentioned  and  reserved,  the  said  John  Evans  conveyed  to  the 
said  William  R.  Yielding  the  lands  of  Carrigkerry,  containing 
722a.  2r.  30p.,  situate  in  the  county  of  Limerick ;  Habendum 
to  the  said  William  R.  Yielding,  his  heirs  and  assigns,  yielding 
and  paying  thereout  to  the  said  John  Evans,  his  heirs  and  assigns, 
the  rent  of  £100  a-year,  payable  half-yearly,  on  the  7th  of  Decem- 
ber and  7th  of  June ;  and  the  usual  clauses  of  distress  and  re-entry 


1860. 
RoUs, 

ATTOBNEY- 
OENEBAL 

r. 

EVANS. 
Judgment, 


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CHANCERY  REPORTS. 


1860. 
RoUs. 

ATTORNET- 

OENERAL 

V. 

EVANS. 

Judgment. 


are  contained  in  the  deed,  and  a  covenant  to  pay  the  rent,  <&c. 
William  R.  Yieldiing  having  applied,  in  the  year  1847,  for  a 
loan,  to  the  Board  of  Works,  under  the  Landed  Property  Improve- 
ment Act  (10  Ftc,  c.  32^,  obtained  an  order  for  the  loan  of 
£500,  under  the  provisions  of  the  said  Act,  which  order  bears 
date  the  15th  of  October  1847,  and  v^as  signed  by  Sir  R.  Griffith 
and  W.  J.  Mulvany,  Esq.,  two  of  the  then  Commissioners.  The 
schedule  to  the  order  states  the  owner  to  be  William  R.  Yielding, 
and  the  townland  or  denomination  by  which  the  lands  are  known  as 
Carrigkerry,  being  the  lands  conveyed  in  fee-farm  by  John  Evans 
to  William  R.  Yielding  by  the  indenture  of  the  7th  of  June  1845. 
A  further  loan  was  made  by  the  Board  of  Works,  to  William  R. 
Yielding,  of  £1000 ;  and  the  Commissioners  now  claim  an  arrear 
of  rentcharge  amounting,  as  I  understand,  to  £871,  together  with 
the  accruing  gales  ;  the  effect  of  which  is  that,  if  the  claim  of 
the  Crown,  in  respect  of  such  arrear,  in  priority  to  Mr.  John' 
Evans,'  be  sustainable,  he  will  not  for  very  many  years,  if  ever, 
receive  any  part  of  the  fee-farm  rent  or  rentcharge  payable  to 
him  under  the  deed  of  1845.  It  appears,  from  the  affidavit  of 
Mr.  John  Evans,  that  he  received  no  notice  of  the  application 
for  the  loans^  from  William  R.  Yielding,  or  from  the  respond- 
ents Richard  M.  Yielding  and  Hugh  E.  Yielding,  or  from  anyone 
on  their  behalf,  or  from  the  Board  of  Works,  or  anyone  on  their 
behalf;  nor  had  Mr.  John  Evans  any  notice  whatever,  until  long 
after  the  granting  of  the  loans,  in  the  petition  mentioned,  of  the 
fact  of  William  R^  Yielding  having  presented  memorials  for  the 
loans  ;  and  Mr.  John  Evans  positively  states,  in  his  affidavit, 
that  he  never  saw  the  notices  in  the  Dublin  Gazette^  or  heard 
of  the  publication  thereof,  until  he  read  the  petition.  The  affidavit 
of  Mr.  John  Evans  states  that,  several  months  after  the  death  of 
William  R.  Yielding  (who  died  in  the  latter  end  of  1853),  the  said 
John  Evans  heard  that  a  large  sum  was  due  to  the  Commissioners 
of  Public  Works,  on  foot  of  loans  made  to  William  R.  Yielding,  for 
the  drainage  of  the  said  lands,  and  that  little  more  than  half  the 
sum  had  been  expended  on  drainage  or  improvements ;  whereupon  be 
addressed  a  letter  to  the  secretary  of  the  Commissioners,  dated  the 


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CHANCERY  REPORTS 
2l8t  of  December  1854, 


177 


GENBBAL 

V. 

BVANS. 

Judgment. 


The  letter  is  set  out  at  length  in  the        I860. 

RolU. 
affidavit ;  and  it  explains  the  facts  to  the  Commissioners,  and  con-     ' v ' 

,  ,.        .         ATTORNEY 

ttms  the  following  passage : — *^  As  I  was  no  party  ta  the  application 
made  for  this  money,  my  interest  cannot  be  affected  by  it,  excepting 
80  far  as  this  additional  charge  upon  the  property  may  prevent  a 
solvent  tenant  from  taking  it ;  and,  as  I  h^ye  no  remedy,  except  by 
distress,  my  head-rent,  in  that  case,  may  be  lost.  It  is,  therefore, 
necessary  that  the  Board  should  ascertain  to  what  extent  the  money 
advanced  for  draining  this  portion  of  the  late  Mr.  Yielding's  pro- 
perty has  been  bona  fide  expended  thereon,  in  order  that  the  property 
may  only  be  charged  with  what  has  actually  been  laid  out  upon  it, 
and  the  sureties  called  upon  for  the  balance.''  The  affidavit  fur- 
ther states  that  Mr.  John  Evans  called  on  the  Commissioners  to 
proceed  to  recover  the  arrears,  against  the  parties  entitled  to  the 
estate  of  William  R.  Yielding,  but  that  they  declined  to  do  so ;  and 
the  affidavit  of  John  Evans  further  states  that  he  believes  that,  if 
proceedings  had  been  taken  from  time  to  time  to  recover  the  instal* 
roents,  as  they  became  due,  against  the  said  William  R.  Yielding,  or 
those  representing  his  estate,  or  deriving  under  him,  the  amount  of 
the  instalments  could  have  been  recovered.  The  affidavit  states  that 
the  Board  of  Works  did  not  answer  the  letter  of  Mr.  John  Evans. 

Two  affidavits  are  made,  one  by  the  solicitor,  and  the  other  by  the 
land  agent  of  Mr.  John  Evans,  corroborating  some  of  the  statements 
made  by  Mr.  John  Evans.  It  is  impossible  to  conceive  a  much  more 
unjust  proceeding  than  that  a  person  who  stands  in  the  position  of  a 
quasi  landlord  is  to  be  improved  out  of  his  property  by  such  pro- 
ceedings as  I  have  stated.  The  question,  however,  which  I  have  to 
decide,  is  not  the  justice  or  injustice  of  the  case,  but  what  is  the 
construction  to  be  put  on  the  statute? 

It  haa  been  contended,  on  the  part  of  the  Crown,  that,  even  in 
the  ordinary  case  of  landlord  and  tenant,  if  the  tenant  falls  within 
the  definition  of  an  owner  under  the  statute,  the  Board  of  Works 
may  advance  loana  'to  the  tenant  without  notice  to  the  land- 
lord— ^may  omit  to  take  the  trouble  to  see  that  the  money  advanced 
is  expended — may  lie  by  for  years,  without  making  the  tenant  pay 
the  ina^alinents ;  and  then  may  appoint  a  receiver  over  the  tenant'a 
VOL.  11.  '  23 


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178 


CHANCERY  REPORTS. 


1860. 

RolU. 

y , ' 

ATTOBNBT- 
OBNBRAIi 

EVANS. 

■Judgment 


intereat,  and  insist  that  the  landlord  is  entitled  to  no  rent,  until  the 
large  arrear  due  £or  iastalments,  accrued  bj  the  neglect  of  the  Board 
of  Works  to  proceed  sooner,  has  been  paid.  So  far  as  that  propo- 
sition is  concerned^  I  am  of  opinion  that  there  is  no  foundation  for 
it,  and  that  a  rent-service  is  not  a  charge  or  incumbrance,  within  the 
meaning  of  the  section  of  the  statute  to  which  I  shall  hereafter  refer. 
.  It  iSy  however^  secondly  insisted  that  the  rent  payable  to  Mr. 
John  Evans,  under  the  deed  of  the  7th  of  June  1845,  is  a  rent- 
change,  Mr.  Joba  Evans  having  conveyed  the  fee  tp  Mr.  Richard 
W.  Yielding.  I  think  it  nuist  be  so  considered  (at  all  events  so  far 
as  the  claim  of  the  Commissioners  of  Public  Works  b  concerned), 
notwithstanding  the  provisions  of  14  &  15  Fife,  c.  20,  and  that  the 
rights  or  priority  of  the  Commissioners,  which  existed  at  the  time 
that  Act  was  passed,  cannot  be  affected  thereby.  Independently  of 
that  Act,  the  rent  reserved  by  the  deed  of  the  7th  of  June  1845 
was,  I  apprehend,  a  rentcharge.  Sir  Michael  O'Loghlen  so  held  it 
to  be  ia  Stevelly  v.  Murphy  (a) ;  and  although,  in  Brady  v.  Fitz- 
gerald {b)y  the  Lord  Chancellor  differed  from  Sir  Michael  O'Loghlen, 
as  to  a  bill  in  Equity  being  sustainable,  where  there  were  no  legal 
impediments  to  the  recovery  of  the  rent  reserved  on  a  grant  in  fee, 
yet  his  Lordship  considered  that  such  rent  was  a  rentcharge.  Mr. 
Hargrav^^  a  high  authority  on  a  question  of  conveyarcing,  in  a  note 
to  Co.  Lit.,  p«  L43  &,  note  235,  says  :»**  After  the  Statute  of  Quia 
Emptor£Sy  granting  in  fee-farm,  except  by  the  King,  became  imprac- 
ticable, because  the  grantor  parting  with  the  fee  is,  by  operation  of 
that  statute,  without  any  reversion ;  and  without  a  reversion  there 
cannot  be  a  rent-sec  vice,  as  Littleton  himself  writes,  in  section 
216;  yet  I  have  seen  a  modern  grant  in  fee,  of  a  large  estate  in 
Ireland,  reserving  a  perpetual  rent  of  great  value ;  but  such  rent, 
considered  as  a  fee-farm  rent,  I  thought  clearly  void.  However  as, 
in  the  case  I  allude  to,  the  conveyance  con^taifred  a  power  for  the 
grantor,  his^  heirs  and  assigns,  to  distrain  for  the  rent  wiien  in 
arrear,  and  also  a  power  to  enter,  and  receive  the  profits,  until 
all  arrears  should  be  paid,  the  rent  might  be  good  as  a  rent- 
charge  ;  and  so,  on  being  consulted,  I  held  it  to  be."  It  is,  therefore, 

(a)  2  Ir.  Eq.  Bep.  456.  (6)  12  Ir.  Eq.  Rep.  279i 


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CHANCERY  REPORTS. 


179 


clear  that,  without  reference  to  the  Act  of  the  14  db  16  of  The 
Qmeen^  c  20,  the  rent  reserved  on  the  indenture  of  the  7th  of  June 
1845  was  a  rentcharge ;  and,  without  oflbring  any  opinion  as  to  the 
eff^t  of  that  Act,  as  to  cases  occurring  after  the  statute,  I  an  of 
opinion  that  the  legal  rights  and  priority  of  the  Crown  which  existed 
when  the  Act  was  passed  (which  was  passed  subsequetit  to  the 
Umna)  were  not  affected  by  that  Act. 

It  is  now,  therefore,  necessary  to  consider  some  of  the  sections 
of  the  statute  10  Ftc,  c.  32,  under  which  Act  the  loans  were 
made  to  Mr.  William  R.  Yielding.  The  37th  section  provides 
that,  in  case  any  loan  shall  be  made  under  the  Act^  the 
lands  specified  ia  the  order  of  the  Commissioners  of  Public 
Works  shall,  from  the  date  of  such  order,  become  charged  with 
the  payment  to  Her  Majesty  of  an  ananal  rentcharge  of  £6. 
10a.  Od.  for  every  £100  of  every  such  loab,  from  time  to  time 
advtincdd,  including  certain  costs  and  CKpeoses^  in  said  iMictaoB  men- 
tioned ;  a^d  the  S^h  section  enacts  that,  **  Ev^y  such  rentcharge^ 
to  be  secured  by  virtue  of  this  Act,  shall  take  priority  of  all  charges 
and  incumbrances  whatsoever,  and  whensoever  made,  except  qvut- 
renta  and  rentcharges  in  lieu  of  tithes,  and  also  save  mnd  except  all 
charges  prior  in  date,  if  any,  existing  under  and  by  virtae  of  an 
Act  passed  in  the  Session  of  Parliament  held  in  the  fifth  aad  sixth 
years  of  the  reign  of  Her  present  Majesty,  entitled  '  An  Aot  to 
Promote  the  Drainage  of  Lands,  and  Improvement  of  Navigatioo 
and  Water-power,  in  connexion  with  kuth  Drainage  in  Ireland,'  and 
two  other  Acts  since  passed,  amending  same  Act,  or  under  or  by 
virtae  of  this  AcU"  The  39th  section  then  provides  the  mode  of 
recovering  the  rentcharge,  by  the  presentation  of  a  petition  in  the 
name  of  the  Attorney-General,  for  the  appointment  of  a  receiver. 
The  present  petition  was  presented  under  that  section. 

The  only  question,  I  apprehend,  is,  whether  the  rentcharge  reserved 
by  the  deed  of  the  7th  of  June  1845  is  a  *' charge  and  incumbrance'^ 
within  the  38th  section  ?  I  am  of  opinion  that  it  is.  I  had  occasion  to 
consider  the  question  whether  a  rentcharge  was  a  charge  or  incum- 
brance, in  the  case  of  Massy  v.   G^Dsll  (a) ;   and  the  authorities 

(a)  9  Ir.  Chan.  Bep.  447,  448. 


JiidgnmU* 


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1860. 
EoUs. 

ATTORKBT- 
OBNERAL 

V, 
EVANS. 

Judgment, 


180  CJIANCERY  REPORTS. 

to  which!  then  referred  establiBh  that  it  is.  That  decision  was 
affirmed  on  appeal.  It  is.  not  necessary  to  go  through  the  cases 
again.  I  am,  therefore,  of  opinion  that  I  must  make  the  order 
sought  by  the  Crown,  and  direct  that  the  receiver  shall  pay  the 
arrears  of  rentcharge  due  to  the  Crown  under  the  provisions  of 
the  10  Ftc,  c  32,  and, the  future  accruing  gales  thereof,  and  the 
Attorney-General's  costs,  in  priority  to  the  rentcharge  claimed  by 
the  said  John  Evans. 

With  respect  to  the  application  made  by  the  respondent,  that  I 
should  permit  him  to  proceed  at  Law,  I  think  I  should  not  do 
so.  On  reference  to  the  clause  of  re-entry,  in  the  indenture  of  the 
7th  of  June  1845,  it  is  not  a  clause  of  forfeiture  for  non-payment 
of  the  rentcharge  thereby  reserved ;  it  is  only  a  power  to  enter, 
and  receive  the  profits  until  the  arrears  are  satisfied ;  and,  as  Little- 
ton lays  down,  *^  The  feoffor  shall  have  the  land,  but  in  manner  as 
and  for  a  diitress,  until  he  be  satisfied  of  the  rent  due,**  &c  The 
authorities  on  this  subject  were  referred  to  in  Smith  v.  Smith  (a). 
If  I  were  to  permit  the  respondent  either  to  distrain  or  bring  an 
ejectment,  and  enter,  the  effect  would  be  to  give  him  priority  over 
the  Crown,  in  contravention  to  the  38th  section  of  the  10  Vic,^ 
c.  32.  I  regret  to  be  obliged  to  make  an  order  against  the  respond- 
ent, which  I  consider  to  be  very  unjust ;  but  the  terms  of  the 
sUtute  are  clear.  The  injustice  does  not  arise  from  the  statute, 
but  from  the  Board  of  Works  not  having  enforced  payment  of 
the  instalments  as  they  fell  due. 

(«)  5  Ir.  Chan.  Bep.  07. 


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CHANCERY  REPORTS.  181 

1860. 


DUCKETT  V.  GORDON.  ^^^  j3 

Nov.  3. 

The  petition  in  thig  matter  was  filed  for  the  administration  of  the  A,    ^^^^ 

joined  in  'a 

assets  of  Colonel  Charles  Edward  Grordon,  by  William  Dackett,  who  settlement  ex- 

ecnted  on  the 

claimed  to  be  a  specialty  creditor,  under  the  following  circumstances,  marruige  of 

his  danghter. 

In   1843,  William  Duckett  was  seised  for  life  of  the  lands  of  which   con- 

Rathellin,  with  power,  when  in  possession,  to  charge  them  with  a  that  he  was  de- 

fortane  for  any  wife  he  should  marry,  at  the  rate  of  £10  per  cent.,  her,°LaiSrw 

for  each  £100  such  wife  should  bring  or  give  to  him  as  her  portion.  ^^  I2m*^or 

William  Duckett  was  also  seised  in  fee  of  the  lands  of  Rathlyon  ^ he^iiihtbe 

and   Coppenagh.      In  January    1843,   William   Duckett  married  entiUed  to  dis- 

*^*^     *  ^  *  pose  of,  which 

Harriett  Isabella  Anne  Gordon,  the  daughter  of  the  testator  Colonel  child's  share  it 

was  calculated 
Grordon,  and  a  settlement  was  executed  in  contemplation  of  the  would  be  at  the 

least   £5000, 
marriage,  on  the  17  th  of  January  1843.     That  settlement  recited  but  the  same, 

that  it  had  been  agreed  that,  in  order  to  make  a  suitable  provision  amount  there- 

for  the  intended  wife,  during  the  lifetime  of  William  Duckett,  by  be'  a^ertainiMl 

way  of  pin-money,  and  after  his  death  by  way  of  jointure,  the  said  ^^  .^d1;he 

William  Duckett  should  convey  the  said  several  lands,  upon  the  trusts  jjjjjj^^ij  ^ 

thereinafter  expressed : — "  And  whereas   the  marriage  portion  of  ? .  po^er  to 
*^  ^     '^  jomtnre  to  the 

the  said  Harriett  I.  A.  Gordon  is  to  be  paid  to  the  said  William  amount  of  £10 

per   cent,    on 

Duckett,  and  whereas  the  said  Charles  Edward  Grordon  is  minded  the   fortune 

which   he 

and  desirous  to  give  to  his  daughter  the  said  Harriett  I.  A.  Gordon,  should  reoeiTe 

with  his  wifo, 

as  a  marriage  portion,  such  sum  or  child's  share  as  he  may  be  appointed  a 

jointure   of 
£500    a-year, 
which  was  also  collaterally  secured  on  other  lands,  not  the  subject  of  the  power. 
The  daughter  died  in  G.'s  lifetime. 

Hetif  that  the  recital  amounted  to  an  absolute  covenant  that  his  daughter 
should  haye,  on  his  death,  an  equal  share  of  his  personal  estate  with  his  other 
children. 

SemhU — If  it  was  not  a  covenant,  it  would  have  amounted  to  a  binding  repre- 
sentation to  the  same  effsct. 

Held  alto,  that  the  obligation  was  not  discharged  by  the  daughter's  death  in 
his  lifetime. 


Held  aUo,  in  calculating  the  amount  payable  under  the  covenant,  sums  advanced 
to  other  children  by  the  testator  in  his  lifetime  should  be  taken  into  account 
and  be  added  to  the  assets. 

Held  al99t  that  interest  should  not  be  calculated  on  the  sums  so  advanced. 


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182 


CHANCEEY  REPORTS. 


1860. 
RolU. 


StaiemenL 


entitled  to  dispose  of,  which  child's  share  it  is  calculated  will  be  at 
the  least  £5000,  bnt  the  same  or  the  precise  amount  thereof  cannot 
be  ascertained  until  the  decease  of  him  the  said  Charles  Edward 
Grordon  ;  and  whereas,  in  the  event  of  the  portion  of  the  said  Har- 
riett I.  A.  Gordon  falling  short  of  £5000,  the  said  William  Duckett 
could  not  charge  the  said  lands  of  Rathellin  with  a  jointure  of  £600 
per  annum,  it  was  agreed,  by  and  between  the  said  parties,  that  the 
other  lands  hereinafter  mentioned,  and  of  which  the  said  William 
Duckett  is  so  seised  in  fee-simple,  should  be  charged  and  incum- 
bered with  the  entire  of  said  sum  of  £500,  or  so  much  thereof 
as  the  said  William  Duckett  would  be  unable  to  charge  upon  the 
said  lands  of  Rathellin,  in  aid  of  and  subsidiary  to  the  charge  herein- 
after to  be  made  upon  the  said  lands  of  RathelUn ;  it  being  the 
true  intent  and  meaning  of  the  parties  hereto,  that,  under  any 
circumstances,  the  said  Harriett  I.  A.  Gordon  should  have  her  join- 
ture of  £500  effectually  charged  upon  the  lands  hereinafter  granted 
and  appointed,  or  intended  so  to  be : "  and  in  pursuance  of  said 
agreement,  and  in  consideration  of  the  marriage,  William  Duckett 
oonveyed  to  trustees  the  said  lands  of  Rathlyon  and  Coppenagh,  of 
which  he  was  seised  in  fee,  for  ninety-nine  years,  in  trust  to  pay 
out  of  the  said  lands  £100  a-yeat  pin-money,  and,  subject  thereto, 
to  the  use  of  William  Duckett  for  life;  and  the  said  William 
Duckett,  in  consideration  of  the  said  intended  manriage,  and  in 
consideration  of  the  portion  or  fortune  of  the  said  Harriett  I.  A. 
Gordon,  agreed  to  be  paid,  as  thereinbefore  stated,  to  the  said 
William  Duckett,  and  in  pursuance  of  his  power  to  jointure,  appoint- 
ed a  jointure  of  £500  a-year  for  the  said  Harriett  I.  A.  Grordon^ 
and  further  conveyed  the  fee-simple  lands,  upon  trust  that,  in  case  he 
did  not  receive  a  fortune  with  the  said  Harriett  I.  A*  Gordon  suffi- 
cient to  enable  him,  under  the  said  power,  to  charge  the  jointure  of 
£500  on  the  said  lands  of  Rathellin,  the  rents  of  the  fee-simple  lands 
should  be  applied  to  pay  such  jointure,  or  to  make  up  the  deficiency 
thereof. 

The  marriage  was  celebrated  shortly  afterwards,  and  there  was 
issue  of  it,  three  sons  and  one  daughter.  William  l>uckett  died 
previously  to  the  1 7th  of  February  1854.    Colonel  Gordon  made 


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CHAl^CERY  REPORTS. 


183 


hi»  will  on  the  17th  of  February  1854,  by  whioh  be  recited  that  he 
had  given  £2000  to  his  eldest  son,  Charles  Edward  Parke  Gordon^ 
and  £2000  to  hia  youngest  son,  Johu  Henry  Gordon ;  ha  bequeathed 
£2000  to  Charles  Duckett,  the  youngest  son  of  bia  deceased  daugh- 
ter, and,  if  he  should  die  under  twenty-one,  he  bequeathed  the  said 
£2000  to  his  grand-daught^,  Harriett,  Duckett,  and  be,  bequeathed 
a  specific  sum  of  £500  to  be  divided  between  his  said  two  sons, 
aod  he  devised  and  bequeathed  some  other  property  to  his  sons 
and  to  bis  wife,  and  appointed  his  sons  and  Alexander  Jopp  his 
ea^eeutors,  and  made  his  sons  residuary  legatee^.  The  ticms  of  the 
will  are  atated  in  the  jnd^nent,  injra^  p.  187- 

The  petition  having  been  referred  to  Master  Litton,  under  the 
15th  section  of  the  Court  of  Chancery  (Ireland)  Regulation  Act 
1850,  he,  by  a  decretal  order,  made  on  the  16th  of  June  I860, 
deoUred  that,  by  the  settlement  of  the  17th  of  January  1843,  the 
testator,  Charles  Edward  Gordon,  contracted  to  give  to  the  peti- 
tioner, William  Duckett,  as  much  money  as  either  of  his  sons  should 
thereafter  receive  from  him,  either  by  gift  in  hjs;  lifetiin^  or  by 
bequest,  or  intestacy,  and  directed  accounts  accordingly; 

The  respondents,  the  sons  and  executors  of  the  petitioner, 
appealed  from  the  order. 


1860, 
RolU, 

DCJCKBTT 

V, 
QORpON. 

Statement. 


Mr.  BrewsUr  and  Mr.  F.  White^  for  the  petitioner. 

First;  the  recital  in  the  settlement  was  binding  on  the  testator 
and  his  assets,  as  a  covenant :  Hollis  v.  Cart  (a) ;  Wood  v.  !%€ 
Copper'nun$r9  Company  [b)v  Barkiporih  v.  Young^ic);  Jones  v, 
How{d)i  ov  as  a  representation:  Hodgson  v.  ffuichimon. (e)* 

Secondly;  the  expression  ** child's  share,"  in  the  settlement, 
meana,  that,  there  shall  be  an  equal,  diviaion  of  his  property 
among  his  children,  so  that  Mrs.  Duckett  shall  get,  an  eqfial 
share  of  it :  Wmia  v.  Blcufk  (f)  ;  to  the  exclusion  of  specific 
legacies ;  and  in.  taking  account  of  the  "  child's  shai^es,"  thfd  tes- 
tator's sons  are  bound  to  bring  into  hotchpot  the  sums  advanced 


(a)  1  Vem.  431. 

(c)  4  Drew,  la 

(e)  1  Sim.  &  St.  525. 


(6)  7  Man..  G.  &  Sc  906. 

((0  7  Hare,  267- 

f/J  5  Via.  Ab.  522,  pA  34. 


Argvcmiad. 


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184 


CHANCERY  REPORTS. 


1860. 
EolU. 

DUCKETT 

r. 

GORDON. 
Argument, 


Judgwunt. 


to  them  by  the  testator  in  his  lifetime,  and  interest  from  the  date 
of  the  advances ;  for  the  testator  could  not  act  in  derogation  of 
to  the  contract  which  he  had  entered  into :  Andrewes  v,  George  (a) ; 
Westcott  V.  Culliford{b). 

Mr.  Warren  and  Mr.  Forbes  Johnson^  contra. 

First;  no  case  has  been  cited  where  a  mere  recital,  without 
something  more,  has  been  held  to  be  a  covenant :  Farreli  v.  ffild- 
ridge  (e).  The  recital  is  so  vague  and  uncertain,  that  it  would  be 
very  difficult  to  carry  it  into  effect ;  but  if  any  intention  can  be 
collected  from  it,  it  would  appear  to  be  that  Mrs.  Duckett  was  to 
receive  a  portion  conditionally  on  her  surviving  her  £Etther. 

Secondly ;  if  it  amounts  to  an  unconditional  covenant,  the  true 
construction  of  it  was,  that  the  testator  had  an  unlimited  power  of 
disposition,  during  his  lifetime,  and  his  daughter  would  be  entitled 
only  to  a  share  of  the  assets  of  which  he  should  die  possessed : 
Logan  v.  Wienkoli  (d) ;  Lord  Si.  Leonards*  Handy  Book  of  Pro- 
perty LaWf  p.  106  ;  Jones  v.  Martin  (e)  ;  Randall  v.  Willis  (f)  ; 
Eyre  v.  Munro  (g). 


The  Master  of  the  Rolls. 

This  case  is  an  appeal  from  the  decretal  order  of  E.  Litton,  Esq., 
the  Master  in  the  matter,  which  order  was  signed  on  the  I6th  of 
June.  The  petition  was  filed  by  the  petitioner  William  Duckett, 
Esq.,  claiming  to  be  a  creditor  by  covenant,  of  the  late  Colonel 
Charles  Edward  Gordon  deceased,  whose  assets  are  sought  to  be 
administered  in  this  suit.  The  facts  of  the  case  are  as  follow : — 
The  petitioner  William  Duckett  was,  on  and  previous  to  the  1 7th 
of  January  1843,  seised  for  life  of  the  lands  of  Rathellin,  with  a 
power  to  the  said  William  Duckett,  when  in  possession,  to  charge 
said  lands  with  a  jointure  for  any  wife  he  should  marry,  at  the  rate 
of  £10  per  cent,  by  the  year,  for  each  £100  such  wife  should  bring 


(a)  3  Sim.  893. 
(c)4C.B,840. 
(e)  6  Vc8.  265. 


(6)  8  Hare,  265. 
(<0  6  CI.  &  Fin.  610. 
CfJ  5Vei.261. 


(g)  3K.it,  J.  309. 


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1860. 
RoUs. 


DUCBLETT 

V, 
GORDON. 


or  give  to  him,  the  said  William  Duckett,  as  her  portico.  I  have 
not  seen  the  instrument  creating  the  power,  but  I  have  stated  it  from 
a  recital  contained  in  the  settlement  which  I  shall  just  now  refer  to. 
The  said  William  Duckett  was  also  seised  in  fee  of  the  lands  of 
Rathljon  and  Coppenagh,  situate  in  the  county  of  Cnrlow.  The  judgment, 
said  William  Duckett  being  so  seised,  a  settlement  was  executed,  in 
contemplation  of  his  marriage  with  Harriett  Isabella  Anne  Gor-^ 
don,  daughter  of  the  said  Colonel  Gordon.  The  settlement  bears 
date  the  17th  of  January  1843,  and  was  made  and  exe* 
cated  by  and  between  the  said  William  Duckett,  of  the  first  part,. 
Colonel  Gordon  and  his  said  daughter,  of  the  second  part,  and 
certain  trustees,  of  the  third  and  fourth  parts ;  and,  after  reciting 
the  facts  I  have  stated,  it  further  recites  that,  upon  the  treaty  for  ' 
said  intended  marriage,  it  was  agreed  that,  in  order  to  make  a 
suitable  provision  for  the  said  Han-iett  I.  A.  Gordon,  as  well  during 
the  lifetime  of  the  said  William  Duckett,  by  way  of  pin-money,  as, 
after  his  decease,  by  way  of  jointure,  he,  the  said  William  Duckett, 
should  settle,  convey  and  assure  the  said  several  lands  and  premises 
upon  the  trusts  thereinafter  expressed ;  and  then  there  is  a  recital 
in  the  following  words : — ''  And  whereas  the  marriage  portion  of 
the  said  Harriett  Isabella  Anne  Gordon  is  to  be  paid  to  the  said 
William  Duckett,  and  whereas  the  said  Charles  Edward  Gordon  is 
minded  and  desirous  to  give  unto  his  daughter,  the  said  Harriett 
Isabella  Anne  Gordon,  as  a  marriage  portion,  such  sum  or  child's 
share  as  he  may  be  enabled  to  dispose  of,  which  child's  share  it  is 
calculated  will  be  at  the  least  £5000,  but  the  same,  or  the  pre- 
cise amount  thereof,  cannot  be  ascertained  until  the  decease  of  him 
the  said  Charles  Edward  Gordon ;  and  whereas,  in  the  event  of  the 
portion  of  the  said  Harriett  Isabella'Anne  Gordon  falling  short  of 
£5000,  the  said  William  Duckett  could  not  charge  the  said  lands 
of  Rathellin  with  a  jointure  of  £500  per  annum,  it  was  agreed,  by 
and  between  the  said  parties,  that  the  other,  lands  hereinafter  men- 
tioned, and  of  which  the  said  William  Duckett  is  so  seised  in  fee- 
simple,  should  be  charged  and  incumbered  with  the  entire  of  said 
Bum  of  £500,  or  so  much  thereof  as  the  said  William  Duckett  would 
be  unable  to  charge  upon  the  said  lands  of  Rathellin,  in  aid  of,  and 
VOL.  11.  24 


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1860. 
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DUCKETT 

r. 

GORDON. 
Judgment, 


subBidiary  to,  the  charge  hereioafter  to  be  made  upon  the  said  lands 
of  Rathellin ;  it  being  the  true  intent  and  meaning  of  the  parties 
hereto  that,  under  any  circumstances,  the  said   Harriett  Isabella 
Anne  Gordon  should  have  her  jointure  of  £500  effectually  charged 
upon  the  lands  hereinafter  -granted  and  appointed,  or  intended  so  to 
be  ; "  and,  after  such  recitals,  it  was,  by  the  said  indenture,  witnessed 
that,  '*  in  pursuance  of  the  said  agreement,  and  in  consideration  of 
said  intended  marriage,  *'  &c.,  the  said  William  Dqckett  conveyed 
the  said  lands  of  Rathellin  to  the  said  trustees,  of  the  fourth  part,  for 
the  term  of  ninety*nine  years,  on  trust  that  they  should,  out  of  the 
rents  and  profits,  pay  £100  a-year  to  the  said  Harriett,  by  way  of 
pin-money  ;  and,  subject  to  the  said  trust,  to  the  use  of  said  William 
Duckett  for  his  life ;   and  the  indenture   farther  witnessed    that, 
'^  in  consideration  of  the  said  intended  marriage,  and  in  consideration 
of  the  portion  or  fortune  of  the  said  Harriett  Isabella  Anne  Gordon, 
agreed  to  be   paid,  as  hereinbefore   stated,    to  the  said  William 
Duckett,  *"  he,  the  said  William  Duckett,  in  pursuance  of  the   re- 
cited power  of  jointuring,  charged  the  said  lands  of  Rathellin  with 
a  jointure  of  £600  a-year  for  the  said  Harriett ;  and  the  indenture 
further  witnessed  that,  '*  in  further  pursuance  of  the  said  agreement, 
and  for  and  in  consideration  of  the  SMd  intended  marriage, "  &c^ 
the  said  William  Duckett  conveyed  to  the  said  trustees,  of  the  third 
part,  the  said  lands  of  which  the  said  William  Duckett  was  seised 
in  fee,  upon  trust  that,  in  case  the  said  William  Duckett  did  not,  in 
his  lifetime,  receive  a  portion  with  the  said  Harriett  sufficient  to 
enable  him,  under  the  power  hereinbefore  mentioned,  to  charge  the 
jointure  of  £500  on  the  said  lands  of  Rathellin,  that  the  rents  of  the 
fee-simple  lands,  so  conveyed  to  the  said  trustees,  of  the  third  part, 
should  be  applied  to  pay  such  jointure,  or  to  make  up  the  deficiency 
therein*    The  marriage  took  place  shortly  afterwards,  and  the  peti- 
tioner William  Duckett,  and  his  said  wife,  had  four  children,  three 
sons  and  a  daughter. 

The  said  Colonel  Charles  Edward  Gordon  had  three  children, 
viz.,  his  said  daughter  Harriett  I.  A.  Duckett,  and  two  sons,  Charlea 
Edward  Parke  Gordon  and  John  Henry  Gordon.  The  said  Harriett 
I.  A.  Duckett  died  in  her  father's  lifetime,  and  before  the  making 


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of  his  will,  hereinafter  mentioned,  and  her  father  made  no  provision  for        1 860. 

.......  ,       ,  .  .  .         .  Rolh, 

her  m  his  lifetime,  end  made  no  payment  to  the  petitioner  m  porsuance 

of  the  e^yenant  or  contract  contained  in  the  said  marriage  settlement. 

The  said  Colonel  Charles  Ekiward  Gordon  made  his  will,  dated 
the  17th  of  February  1854,  and  he  thereby  directed  his  debts  and  judgment. 
funeral  expenses  to  be  paid  ;  and  after  reciting  that  in  his  lifetime  the 
tesUtor  had  given  £2000  to  his  eldest  son,  Charles  Edward  Parke 
Gordon,  captain  in  the  75th  Regiment,  for  the  purehase  of  his  com- 
mission, and  farther  reciting  that  the  testator  had  given,  in  his 
lifetime,  £2000  to  his  youngest  son,  John  Henry  Gordon,  to  set 
him  up  in  the  business  of  wine-merchant,  the  will  proceeds  thus : — 
''  And  now  that  my  beloved  daughter  Harriett  Isabella  Anne  Gor- 
don has  died,  I  give,  devise  and  bequeath  to  her  youngest  son, 
Charles  Duckett,  the  sum  of  £2000,  upon  my  death,  to  be  held  in 
trast  for  him  until  he  attains  the  age  of  twenty-one  years,  and  the 
interest  thereon  to  be  used  towards  his  education,  and  such  expenses 
as  may  be  deemed  necessary  during  his  minority;"  and  in  the 
event  of  the  said  Charles  Duckett  dying  under  twenty-one,  the 
testator  bequeathed  the  said  sum  of  £2000  to  his  grand-daughter, 
Harriet  Duckett.  The  will  then  proceeds  thus: — '^  And  whereas,  on 
the  death  of  the  Hon.  Mrs.  Hutcheson,  I  am  entitled  to  the  sum  of 
£500,  bequeathed  to  me  under  the  will  of  the  late  Lord  Glenbervie, 
it  is  my  will  and  desire  that  the  said  sum  of  £600  shall  be  divided 
between  my  sons  Charles  Edward  Parke  Gordon  and  John  Henry 
Gordon."  The  testator  then  bequeathed  a  sum  of  £1000,  to 
which  he  stated  his  representatives  would  be  entitled,  in  the 
event  of  his  pre-deceasing  his  sister,  between  his  said  sons.  The 
testator  then  bequeathed  his  share  of  his  fisheries  on  the  river  Dee 
to  his  son  Charles  Edward  Parke  Gordon.  Then  follows  a  bequest 
to  testat^n^'s  wife,  of  some  trifling  articles,  and  he  appointed  his  said 
sons,  and  his  son-in-law,  the  petitioner,  and  Alexander  Jopp,  his 
executors,  and  made  his  said  sons  his  residuary  legatees.  The  peti- 
tioner William  Duckett,  and  the  respondent  John  Henry  Gk>rdon, 
proved  the  will,  saving  the  rights  of  the  two  other  executors. 

Charles  Edward  Parke  Gordon  denies  the  accuracy  of  the  recital 
in  his  father's  will,  that  he  had  given  him  £2000,  and  he  says  he 


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DUCKETT 

r. 

GORDON. 


Judgment 


only  received  £1450.  ^  L  believe  the  other  son  also  disputes  the  snm 
alleged  to  have  been  advanced  to  him. 

The  first  question  which  arises  is,  whether  there  was  any  covenant 
or  contract,  by  the  said  Colonel  Gordon  with  the  petitioner,  con- 
tained in  the  settlement  of  the  17th  of  January  1843  (executed  on 
the  marriage  of  the  petitioner  with  Harriett  I.  A.  Gordon,  daughter 
of  the  said  Colonel  Gordon),  to  pay  to  the  petitioner  any  sum  as  the 
portion  or  fortune  of  the  said  Harriett  I.  A.  Gordon,  or  any  repre- 
sentation made  by  the  said  Colonel  Gordon,  by  said  settlement,  as 
to  his  intentions,  binding  on  him  and  on  his  assets? 

Secondly;  if  there  was  any  contract  or  agreement  binding  on 
the  late  Colonel  Gordon,  is  the  construction  put  upon  such  contract 
by  the  Master  the  right  construction? 

Thirdly* ;  if  there  was  a  binding  contract,  and  if  the  construction 
put  upon  it  i>y  the  Master  is  not  the  true  construction,  what  is  the 
construction  to  be  put  upon  it  ? 

Fourthly ;  did  the  death  of  Harriett  I.  A.  Duckett,  in  her  father's 
lifetime,  render  the  performance  of  the  contract  impossible  ? 

Fifthly;  if  there  was  a  contract  binding  on  the  late  Colonel 
Gordon,  at  the  time  of  his  death,  and  if  the  construction  which  I 
think  should  be  put  upon  the  contract  be  correct,  how  is  such  con- 
tract now  to  be  carried  into  effect  ? 

With  respect  to  the  first  question,  I  am  of  opinion  that  there  was 
in  the  said  settlement  a  covenant  or  contract  entered  into  by  the  late 
Colonel  Gordon  with  his  son-in-law,  the  petitioner.  The  terms  of 
the  contract  are  very  vague ;  but  the  recitals  in  the  settlement  show 
that  the  petitioner  was  tenant  for  life  of  the  lands  of  Rathellin,  and 
had  a  jointuring  power  entitling  him  to  charge  a  jointure  at  the  rate 
of  £10  a-year  for  every  £100  his  wife  "should  give  or  bring  to 
him,'*  the  said  William  Duckett,  as  her  portion.  It  was  clearly 
intended  by  the  parties  to  the  settlement  that  the  jointuring  power 
should  be  executed,  although  it  may  be  very  doubtful  whether  the 
agreement  of  the  late  Colonel  Gordon,  contained  in  the  recital  I 
have  read,  authorised  the  execution  of  the  power.  If  it  was  intended 
that  the  power  of  jointuring  shoftld  be  exercised,  it  must,  I  think, 
have  been  intended  that  the  said  recital  should  amount  to  a  contract 


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binding  on  the  late  Colonel  Gordon.     That  a  recital  maj  amount  to 
a  binding  contract  is  establbhed  hj  the  authorities  which  have  been 
referred  to.     That  the  recital  was  intended  to  amount  to  an  agree- 
ment is,  fn  my  opinion,  also  established,  by  what  follows  the  recital; 
for  it  is  by  the  deed  witnessed  that,  ''in  consideration  of  the  intended 
marriage,  and  in  consideration  of  the  portion  or  fortune  of  the  said 
Harriett  I.  A.  Gordon,  agreed  to  be  paid,  as  hereinafter  stated*,  to 
the  said  William  Duckett,"  he  the  said  William  Duckett  conveyed 
the  lands  of  Rathellin  to  the  trustees;  and  the  power  to  jointure 
purports  to  be  executed.   I  concur,  therefore,  with  the  Master,  in 
his  opinion  that  there  was  a  binding  contract  entered  into  with  the 
petitioner  by  the  late  Colonel  Gordon,  to  give  a  marriage  portion 
with  his  daughter,  to  be  paid  to  the  petitioner  on  Colonel  Gordon's 
death.     I  doubt  whether  it  is  open  to  the  appellants  to  raise  this 
question  now,  as  it  appears,  from  the  recitals  in  the  Master's  order, 
that  he  made  an  order,  dated  the  16th  of  September  1858,  which 
has   not  been  appealed  from,  to  pay  the  petitioner  a  part  of  his 
claim,  which  was  accordingly  paid,  and  which  should  not  have  been 
paid  except  on  the  assumption  that  there  was  a  contract  binding  on 
the  late  Colonel  Gordon.    As  I  am  of  opinion  that  there  was  a  tu>n- 
tract,  it  is  not  necessary  to  decide  whether,  if  there  was  no  contract, 
there  was  a  representation  of  intention,  binding  on  the  late  Colonel 
Gordon,  and  on  his  representatives.     The  principal  authority  on  the 
latter  point  is  Hammersley  v.  Biel  (a).     I  think,  however,  there  is 
strong  ground  for  holding,  on  the  authority  of  that  case,  that  there 
was  a  representation  of  i|ptention  on  the  part  of  the  late  Colonel 
Gordon,  binding  on  him,  and  on  his  assets.    A  difficulty  arises,  as  to 
my  finally  deciding,  at  present,  whether  there  was  such  contract  or 
representation,  on  the   ground  that  the   minor,  Charles   Duckett, 
was  not  represented  by  Counsel  or  solicitor  or  guardian,  before  the 
Master,  or  before  me ;  but  I  shall  advert  more  particularly  to  that 
difficulty  just  now ;  it  was  not  raised  by  Counsel. 

Thre  second  question  is,  if  there  was  a  contract,  or  agreement  or 
representation,  in  the  settlement,  binding  on  the  late  Colonel  Gordon, 
M  the  construction  put  upon  it  by  the  Master  the  correct  construction? 

(a)  12CL&F.45. 


1860. 
Rolls. 

DUCKETT 

V. 
OOBDON. 

Judgment. 


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1860. 
RolU. 


Judgment, 


The  Master  has  declared  by  his  decretal  order  that,  according  to  the 
true  coDStrnction  and  efibct  of  the  marriage  settlement  of  the  I7tb  of 
January  l<84d,  the  testator,  Charles  Edward  Gordon,  contracted  to 
give  to  the  petitioner,  William  Duckett,  as  much  money  as  either 
of  his  sons  should  thereafter  receive  from  him,  either  by  gift  in 
his  lifetime,  or  by  bequest  or  intestacy.  I  am  of  opinion  that  that 
declaration  is  erroneous.  I  understand  thut  the  Master  made  the 
declaration  on  the  authority  of  the  cases  of  Willis  v.  Block  (a)  and 
Logan  v.  Weinholi  (6) ;  but  I  do  not  think  that  those  eases  are  appli- 
cable, having  regard  to  the  terms  of  the  settlement  in  the  present 
case.  Suppose  the  testator  had  property  in  his  lifetime  of  the  value 
of  £6000,  which,  I  believe,  was  about  the  value,  and  that  he  had 
advanced  to  one  of  his  sons  in  his  lifetime  £6000,  and  left  assets, 
after  payment  of  funeral  expenses  and  debts,  to  the  amount  of 
£3000,  the  petitioner  would  have  been  entitled,  according  to  the 
Master's  decision,  to  the  whole  of  such  assets,  and  the  other  son 
would  have  been  entitled  to  nothing.  So  also,  according  to  the 
construction  put  by  the  Master  on  the  contract,  if  the  testator 
had  not  advanced  either  of  his  sons  in  his  lifetime,  and  had  given 
nothing,  or  only  0,  nominal  sum,  to  one  or  both  of  his  sons,  and 
had  bequeathed  his  property  to  a  stranger,  the  petitioner  would 
have  been  entitled  to  nothing,  or  only  to  a  sum  equal  to  such 
nominal  sum  bequeathed  to  one  of  the  sons.  Many  other  cases 
might  be  suggested,  equally  inconsistent  with  what  Was  the  inten- 
tion of  the  parties  to  the  settlement.  The  words  of  the  recital  are 
as  follow : — *'  And  whereas  the  marriage  portion  of  the  said  Harriett 
Isabella  Anne  Gordon  is  to  be  paid  to  the  said  William  Dnckett ; 
and  whereas  the  said  Charles  Edward  Gordon  is  minded  and  desir- 
ous to  give  unto  his  daughter,  the  said  Harriett,  as  a  marriage 
portion,  such  sum  or  child's  share  as  he  may  be  entitled  to  dispose 
o^  which  child's  share  it  is  calculated  will  be  at  the  least  £5000, 
but  the  same,  or  the  precise  amount  thereof,  cannot  be  ascertained 
until  the  decease  of  him,  the  said  Charles  Edward  Gordon ; "  and 
t)ie  recital  then  proceeds  to  provide  for  the  event  of  the  porticm 
being  less  than  £5000.     The  question  is,  what  is  the  meaning  of 

(a)  4  Row.  170.  (*)  r  CL  &  F.  61 1. 


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the  term  "child's  share?**  I  cannot  concur  with  the  Master's 
opinion  on  that  point,  as  stated  in  the  declaration  contained  in 
the  decretal  order. 

Thirdly;  if  there  was  a  contract  or  a  reprsentation  hinding  on 
the  late  Colonel  Gordon,  and  on  his  assets,  and,  if  the  construc- 
tion put  upon  the  settlement  by  the  Master  is  not  the  true  con- 
struction, the  question  is,  what  is  the  true  construction?  That 
depends,  as  I  have  already  slated,  upon  the  meaning  of  the 
term  ^*  child's  share."  I  am  of  opinion  that  the  contract  of  the 
late  Colonel  Grordon  was,  that  his  daughter  Harriett  should  have 
as  her  portion,  on  his  death,  an  equal  share  of  his  personal  estate 
witk  his  other  children,  and  that  such  portion  should  be  paid  to 
the  petitioner. 

In  Lord  Si,  Leonards*  Handy  Book  on  Property  Law,  7th  ed., 
pp.  157,  158  (a  work  containing  a  greater  aBH>unt  of  learning  than 
any  work  of  a  similar  size),  it  is  thus  laid  down: — *'It  is  not 
unusual  for  a  parent,  upon  a  daughter's  marriage,  to  agree  to  leave 
her  at  his  death  a  fortune  equal  to  his  other  children.  Such  an 
agreement  does  not  confine  or  restrict  the  father's  power ;  he  may 
alter  the  nature  of  his  property  from  personal  to  real,  or  he  may 
give  scope  to  projects,  or  indulge  in  a  free  and  unlimited  expense ; 
but  he  win  not  be  allowed  to  entertain  mere  partial  inclinations 
towards  one  ohild  at  the  expense  of  another.  If  his  partiality  do 
rise  so  high,  and  he  will  make  a  difference,  he  must  do  it  directly, 
absolutely^  and  by  surrendering  all  his  own  right  and  interest ;  he 
must  give  out-and-out;  he  must  not  exercise  his  power  by  an 
act  which  is  to  take  effect  not  against  his  own  interest,  but  only  at 
a  time  when  his  own  interest  will  cease.  He  cannot,  for  instance, 
give  property  in  his  lifetime  to  one  child,  reserving  the  interest 
to  himself;  for  such  a  gift  is  in  fact  testamentary,  and  in  fraud 
of  his  agreement." 

In  the  case  of  Jones  v.  Martin,  reported  in  a  note  to  5  Veeey, 
p.  260,  the  law  was  laid  down  in  the  House  of  Lords,  in  the  manner 
stated  by  Lord  St.  Leonards^  in  his  Hantfy  Book.  The  case  of 
Jones  ▼.  Martin  is  referred  to  by  Vice- Chancellor  Wood,  in  B$fre 
T.  Munro  (a).  In  the  case  of  Barkteorik  v.  Youn^  (6),  a  question 
(a)  3  Kay  &  J.  309.  {b)  4  Drew.  18. 


I860* 
RolU. 

DUCKBTT 

v. 

GORDON. 
Judgment. 


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QOBDON. 
Judgment, 


arose  on  demurrer,  as  to  the  effect  of  a  marriage  contract  entered 
into  with  the  plaintiff,  on  his  marriage  with  the  daughter  of  R.  C 
Young.  The  contract  of  R.  C.  Young  with  the  plaintiff,  as  stated 
in  one  part  of  the  bill,  was  that  he  would,  at  his  death,  leave  to  his 
daughter  an  equal  share  of  his  property  with  his  other  children ;  and 
in  another  part  of  the  bill,  the  contract  would  appear  to  have  been 
that,  at  his  death,  his  daughter  should  have  an  equal  share  with  his 
other  children.  That  is,  I  apprehend,  what  was  meant  in  this  case 
by  *'  a  child's  share."  Vice-chancellor  Eindersley,  in  his  judgment 
on  the  demurrer  j[p.  18),  considered  that  there  was  no  difference 
between  those  two  Statements  in  the  bill,  and  said : — **  According  to 
either  of  the  two  forms  of  expression,  the  promise  was  capable  of 
being  performed  in  two  ways — either  by  bequeathing  to  his  daugh- 
ter by  will  an  equal  share,  or  by  dying  intestate,  and  leaving  his 
children  to  share  equally,  under  the  Statute  of  Distributions."  That 
case  differs  from  the  present  only  in  this,  that  here  the  contract  was 
that  the  share  of  Harriett  should  be  paid  to  the  petitioner ;  but  that 
does  not  affect  the  question  as  to  what  was  the  meaning  of  the  term 
"  child's  share."  A  question  arose  in  the  above  case  of  Barkwarth 
V.  Young^  to  which  I  shall  advert  just  now,  in  considering  another 
part  of  this  case. 

In  the  case  oi  Janes  v.  How{a\  decided  by  Vice-Chancellor 
Wigram,  which  was  referred  to  and  considered  by  Yice-Chancellor 
Eindersley,   in  Barkworth  v.    Young^  a  father,  on  the   marriage 
of  his  daughter  with  the  plaintiff,  covenanted  with  the   plaintiff 
that  he  would,  by  deed  or  will,  leave  and  bequeath  to  his  daugh- 
ter an  equal  share  with  his  other  children.     That  is,  I  apprehend, 
what  in  the  settlement  in  the   present  case  is  called  ^*  a  child's 
share."     The  bill  in  that  case  was  dismissed,  on  a  ground  that  I 
shall  advert  to  just  now,  that  the  contract  became  incapable  of  per- 
formance, by  the  death  of  the  daughter  without  issue  in  her  father's 
lifetime ;  but  it.  was  not  doubted  that  the  contract  was  in  its  in- 
ception a  valid  contract,  and  that  a  father  might  contract  with  the 
intended  husband  of  his  daughter,  that  he  would  give  or  leave  her 
an  equal  share  of  his  property  with  his  other  children ;  i.  e^  in  other 
words,  that  her  portion  was  to  be  "  a  child's  share."      If  the  term 
(a)  7  Hare,  267. 


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"child*!!  share/'  in  the  present  case,  meant  that  Harriett  shonld 
have  an  equal  share  of  the  testator's  property,  and  that  the  con* 
tract  in  the  present  case  was  substantially  the  same  as  in  the 
cases  I  have  referred  to,  except  that  the  portion  of  Harriett  was 
to  be  paid  to  the  petitioner,  the  declaration  in  the  Master's  order 
is  incorrect  in  declaring  that,  according  to  the  true  construction 
of  the  settlement  of  the  1 7th  of  January  1843,  the  testator  con- 
tracted to  give  to  the  petitioner  as  much  money  as  *'  either  of  his 
sons  should  thereafter  reeeive  from  him,  either  by  gift  in  his 
lifetimci  or  by  bequest  or  intestacy .'^ 

The  next  question  which  arises  (suppdaing  there  was  a  valid 

and   binding  agreement  or  representation   made  by  the  testator) 

is,  whether  he  was  discharged  from  its  obbgations  by  the  death 

of  Harriett  I.  A.  Duckett  in  his  lifetime?    In  Jon€9  v.  How{a\ 

to  which  I  have  already  referred,   the   father,   on   the   marriage 

of  his  daughter,  covenanted  with  the  plaintiff  that  he  would  by 

deed  or  will  give,  leave  and  bequeath  to  the  daughter  an  equal 

share  of  his  real  and  personal  estate  with  his  other  children.  She 

died  in  her  father's  lifetime, ^ without  issue;'  and,  on   the  latter 

ground,  it  was  held  that  Ibe  agreement  was  incapable  of  being 

performed.     That  case  was  considered  by  Vice-Chancallor  Ein- 

deraley,   in  the  case  of  Barkworih  v.    Young  (b)y  the  marginal 

note   to  which  is  not  correei;  and,   having  regard  to  the  judg^ 

ment  of  the  Yice-Chaocellor,  commencing  at  page  18^  and  that 

Harriett  L  A.  Duckett  left  issue^  the  contract  would  have  been 

capable  of  p^ormanoe  if^  in  the  present  case,  it  had  been  to 

give  or  leave  a  child*s  share  to  the  said  Harriett.     But  no  diffi- 

eoltj  auch  as  arose  in  Barbeorih   v.    Young  ariaes  here,  as  the 

ooBtraet  in  this  case  was,  that  the  portion  of  the  said  Harriett 

alioold   be  paid  to  the  petitioner;  and  the  late  Colonel  Grordon 

might   have  made  a  will,  leaving  such  portion  to  the  petitioner, 

whidi,  I  apprehend,  would  have  been  a  performance  of  the  con- 

iract*     I  do  not,  therefore,  think  that  the  death  of  Harriett  in 

ibe  lifetime  of  her  father  rendered  the  contract  or  representation  of 


JuigwteM* 


(a)  7  Hare,  267. 
TOL.  11. 


(*)  4  Drew.  1. 


23 


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1860. 
Rolh. 


Judgment. 


the  late  Colonel  Gordon,  contained  in  the  settlement,  incapable  of 
performance. 

The  next  question  which  arises  is,  as  to  the  manner  the  contract 
should  be  carried  into  effect,  assuming  that  the  construction  which 
I  put  upon  it  be  correct.  If  the  contract  of  the  late  Colonel 
Gordon  had  been  similar  to  the  agreement  in  Barkworth  v.  Youngj 
that  he  would,  at  his  death,  leave  to  his  daughter  an  equal  share 
of  his  property  with  his  other  children,  or  that  his  daughter  should 
at  his  death  have  an  equal  share  with  his  other  children,  according 
to  the  judgment  of  the  Vice- Chancellor  (p.  18),  it  could  have  been 
performed  in  two  ways,  if  Harriett  had  survived  her  father,  ^'  either 
by  bequeathing  to  his  daughter  by  will  an  equal  share,  or  by  dying 
intestate,  leaving  his  children  to  share  equally  under  the  Statute  of 
Distributions;"  and,  in  page  20,  he  states :—^'*  Now  here,  it  was 
manifestly  the  intention  of  the  parties  that,  in  one  way  or  the  other, 
the  daughter  should  have  an  equal  share  of  the  testator's  property." 
Any  testamentary  disposition  which  would  have  prevented  the 
daughter  taking  an  equal  share  of  the  testator's  property  would, 
according  to  what  is  laid  down  by  Lord  Si.  Leonards^  have  been 
a  fraud  on  the  agreem^t.  Now  if,  in  the  case  of  Barkworth 
v.  YounQy  the  term  used  had  been  **  child's  share,"  instead  of 
*^  equal  share  of  his  property  with  other  children,"  I  should  have 
considered  the  meaning  to  be  the  same.  If  so,  the  contract  in 
the  present  case  being  that  the  portion  should  be  paid  to  the 
petitioner  cannot  vary  the  amount  payable.  The  amount  payable 
was,  in  my  opinion,  an  equal  share;  that  is  (the  late  Colonel 
Gordon  having  had  three  children),  one-third  of  his  property ; 
and,  in  calculating  what  that  one-third  would  amount  to,  I  think 
that  the  sums  advanced  to  the  two  sons  should  be  taken  into 
consideration,  and,  being  added  to  his  assets,  the  petitioner  would 
be  entitled  to  such  sum  as  would  be  equal  to  one-third.  The 
two  sons  would  not,  of  course,  be  bound  to  bring  their  shares 
into  hotchpot,  unless  they  claimed  a  part  of  the  assets ;  but,  as 
I  understand  the  argument  addressed  to  me,  they  deny  that  the 
^ill  correctly  states  the  sums  advanced  to  them  by  the  late  Colonel 
Gordon  in  his  lifetime;  and  they  contend  that,  if  the  constmction 


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which  I  put  on  the  settlement  be  correct^  they  are  entitled  (bring- 
ing the  sums  so  advanced  into  hotchpot)  each  to  a  child's  share. 

A  question  was  raised  by  the  petitioner,  as  to  the  two  sons  being 
charged  with  interest  on  the  sums  to  be  brought  into  hotchpot; 
but  I  am  not  aware  of  any  case  in  which,  where  sums  advanced 
are  brought  into  hotchpot,  interest  has  been  charged.  When  I  speak 
of  money  being  brought  into  hotchpot,  that  expression  is,  strictly 
speaking,  only  applicable  to  cases  under  the  Statute  of  Distributions. 

I  overlooked,  during  the  argument,  my  attention  not  having 
been  called  to  the  fact,  that  the  minor  son  of  the  petitioner, 
to  whom  £2000  was  bequQiithed  by  the  late  Colonel  Gordon,  had 
an  interest  adverse  to  that  of  the  parties  who  appeared  on  the 
appeal,  and  had  an  interest  in  disputing  the  claim  of  the  two  sons 
of  the  late  Colonel  Gordon ;  and  I  sent  in  an  order,  shortly  after  the 
Court  rose  last  Sittings,  which  recognised  the  claim  of  the  two  sons. 
I  think  that  the  minor  ought  to  have  been  represented  both  in  the 
Master^s  office  and  in  this  Court ;  and  I  accordingly  afterwards  put 
a  stay  on  the  order.  The  way  in  which  the  claim  of  the  two  sons, 
supposing  the  construction  I  put  on  the  settlement  to  be  correct,  is 
sought  to  be  established  is  this : — The  contract,  as  I  construe  it,  is, 
that  the  portion  of  Harriett  L  A.  Gordon  was  to  be  an  equal  share 
of  the  property  of  the  late  Colonel  Gordon  with  his  other  children  ; 
and  the  two  sons  contend  that  this  in  effect  was  a  contract  by  the 
late  Colonel  Gordon,  that  his  personal  property  should  be  equally 
divided  between  all  his  children.  This  is  a  question,  however,  which 
Counsel  for  the  minor  should  have  been  heard  upon.  The  two  sons 
were  no  parties  to  the  settlement ;  and  it  might  be  argued  that  there 
was  no  contract  with  them,  and  no  contract  with  the  petitioner  for 
their  benefit ;  and,  if  there  was,  that  neither  the  marriage  consider- 
ation, nor  any  other  consideration  in  the  settlement,  extended  to 
them.  Suppose  that  the  petitioner  had  adopted  the  course  of  making 
no  claim  on  foot  of  the  covenant,  leaving  the  assets  to  be  applied  to 
the  payment  of  the  legacy  to  the  minor,  could  the  sons  of  the  late 
Colonel  Gordon  have  filed  a  cause  petition,  claiming  under  the  agree- 
ment in  the  settlement  ?     Or,  if  the  suit  had  been  instituted  in  the 


1860. 
RolU, 


Judgment. 


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1860. 


Judgm^m* 


name  of  the  minor,  to  raise  the  amount  of  his  legaey,  and  the 
petitioner  had  filed  no  charge  in  such  suit  on  foot  of  the  eoTenant, 
could  the  sons  of  the  late  Colonel  Gk>rdon  have  claimed  nnder  the 
covenant  ?  If  not,  the  question  then  arises,  can  the  fact  of  the  peti- 
tioner claiming  under  the  covenant  give  rights  to  the  two  sons  of  the 
late  Colonel  Gordon  to  make  a  claim  as  creditors,  and  thus  defeat 
the  bequest  to  the  minor  ? 

I  think  that  Cornnsel  on  both  sides  will,  on  consideration,  see 
that  the  minor  ought  to  have  been  represented  in  the  suit,  and  that, 
if  he  is  not  represented,  the  decision  of  the  Court  would  not  be 
binding  on  him.  I  shall  be  willing  to  sanction  any  course  which 
will  lead  to  the  least  expense,  provided  there  be  a  bona  fiit  ap- 
pearance, by  Counsel  of  eminence,  on  the  part  of  the  minor. 
There  is  doubt  on  the  point,  which  was  not  argued  before  me,  the 
minor  not  having  be^n  represented.  If  such  objection  had  been 
made  on  the  part  of  the  minor,  it  might,  perhaps,  have  been  con- 
tended that  the  covenant  was  substantially  the  same  as  the  cove- 
nant in  BarkmwrA  v.  Knm^  ;  and  that  it  was  a  contract  with  the 
petitioner,  that  his  intended  wife  and  her  two  brothers  should  each 
have  a  child's  share,  t.  e.,  an  equal  share  of  Colonel  Gordon's  per- 
sonal estate ;  and  if  so,  and  supposing  that  there  was  no  objection 
to  the  claim  of  her  two  brothers,  except  the  want  of  consideration, 
that,  although  a  Court  of  Equity  will  not,  upon  a  bill  or  cause 
petition  filed  by  a  volunteer,  give  him  any  assistance,  yet,  upon  a 
Inll  or  cause  petition  filed  by  any  of  the  parties  to  the  deed,  from 
whom  any  valuable  consideration  moved,  all  the  trusts  will  be  car- 
ried into  efleot,  even  those  in  favour  of  volunteers.  That  was 
decided  by  Vice^ChanceUor  Bruoe,  in  DavenpoH  v.  Bishop  («), 
which  decision  was  affirmed  by  Lord  Cottenham,  on  appeal  (6). 

The  question,  however,  is,  whether  I  am  justified  in  deciding 
diis  point,  in  the  abeenoe  of  the  minor  ?  Th^  Master  has  declared, 
by  his  order,  that  Uie  legacy  to  the  minor,  Charles  Dnckett,  ^*  has 
altogether  &iied  of  efiect,  by  reason  of  there  being  no  assets  or 
property  of  the  testator  to  answer  the  same."    That  was  the  reeult 


(a)  2  Y.  &  C.  C.  C,  451. 


(6)  1  PhilUps,  668. 


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CHANCERY  REPORTS.  197 

of  the'  Master's  constraction  of  the  contract;  and  the  same  result        I860. 

J?oiSb. 

would,  I  believe^  follow  from  the  construction   which  I  have  put     ^ , ' 

on  the  contract ;  but  I  am  not  quite  sure  of  this.    It  is,  no  doubt,  ^ 

perfectly  settled,  as  a  general  rule,  that  a  pecuniary  legatee  is  not  a  oordoit* 
neoessary  or  proper  party  to  a  bill  or  petition  for  an  account  of  the  judgment 
personal  estate,  it  being  the  duty  of  the  executors  to  protect  the 
estate  against  improper  demands;  but  where,  as  in  the  present 
case,  the  interest  of  the  minor  is  adverse  to  that  of  three  of  the 
executors  (the  petitioner  and  the  two  sons  of  the  late  Colonel  Gor- 
don, who  are  respondents,  being  executors  of  the  3vill),  I  apprehend 
I  should  not  fin|illy  dispose  of  the  case,  without  the  minor  being,  in 
some  way,  made  a  party  to  the  proceedings :  The  Marquis  of  Hert- 
ford V.  Ziehi  (a).  I  have,  therefore,  put  a  stay  on  the  order.  There 
ought,  under  the  circumstances,  have  been  a  guardian  ad  litem 
appointed.  .  As  to  the  best  mode  of  obviating  this  objection,  it 
will  be  for  Counsel  to  consider. 


It  turned  out  that  there  would  not  be  assets  to  pay  any  part  of 
the  legacy  bequeathed  to  the  minor,  after  providing  for  the  peti- 
tioner's claim  ;  and  an  order  was  accordingly  agreed  to  by  Counsel, 
in  accordance  with  the  judgment  of  the  Master  of.  the  Rolls, 
and  the  order  of  Master  Litton  was  varied,  and  the  funds  were 
distributed. 

(o)  9  Bear.  11. 


*  Note. — Mr.  Serjeant  Launon  haying  been  com olted,  on  behalf  of  the  minor, 
gave  the  following  opinion: — 

**  I  haye  considered  this  case  on  behalf  of  the  minor ;  and  I  am  of  opi- 
Dioo  that  the  petitioner  deariy  has  a  demand  against  the  assets  of  Colonel 
Gordon,  as  a  creditor,  by  Tirtne  of  the  contract  contained  in  the  marriage  settle- 
ment of  Bir.  and  Mrs.  Buckett,  and  is  entitled  to  haye  that  demand  satisfied 
oat  of  the  assets,  before  any  legalee  be  paid.  As  against  the  demand  of  the  peti. 
tioner,  therefore,  I  think  that  the  minor  has  no  case.  A  pecnniaiy  legatee  has 
no  remedy  if  a  creditor  sweeps  away  the  assets,  which  wonld  otherwise  be  appli- 
cable to  pay  his  legacy.  Kor  can  I  see  the  least  reason  for  donbthig  that  the 
Mastse  of  the  Rolls  has  come  to  a  right  oondnsion  as  to  the  nature  and 
extent  of  the  petitioner's  demand.  Whether  the  minor  will  be  entitled  to  receire 
anything  on  foot  of  the  £2000  legacy  depends  on  the  state  of  the  assets.      Now, 


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I860.         looldng  ftt  the  report,  it  appears  that  the  general  personal  assets  will  be  all  re- 
RoUs.  qnired  to  make  up  the  amount  claimed  by  the  petitioner.     The  £500  and  £1000 

mentioned  in  the  will  are  specifically  beqneathed,  and  the  minor  is  not  entitled  to 
be  paid  ont  of  them. 

"  If,  after  satisfying  the  demand  of  the  petitioner,  there  were  a  residue,  I 

should  be  of  opinion  that  two-thirds  of  snch  residue  wonld  be  applicable  to  pay 

Judgment*  the  legacy  to  the  minor,  in  preference  to  the  daim  of  the  sons  as  residoaiy 
legatees ;  for,  I  think  that,  thoagh  the  contract  in  the  marriage  settlement  was 
to  give  petitioner  a  child's  share,  there  was  no  contract  to  give  a  like  share  to  the 
other  two  children ;  for  instance,  if  testator  had,  by  his  will,  given  Mr.  Dnckett 
a  (nil  third  of  all  his  property,  and  so  performed  the  obligation,  he  might  hare 
disposed  of  the  rest  of  his  property  as  he  thought  fit  If  the  marriage  settlemspt 
amounts  to  a  contract  to  divide  all  his  property  equally  amongst  his  children,  as 
in  Jones  v.  Martin,  even  this  opinion  would  be  wrong ;  but  I  do  not  think  it  can 
be  held  that  the  father,  by  his  contract,  intended  to  fetter  himself  as  to  the  mode 
in  which  he  might  share  his  property  with  his  other  children.  * 

'*  This  is  a  point,  however,  which  does  not  call  for  decision;  there  is  no  lesidae 
to  give  rise  to  the  question ;  and  I  am,  therefore,  of  opinion  that  no  benefit  can 
accrue  to  the  minor  from,  the  legacy  of  £2000. 

**  Jambs  A.  Lawson.'* 
'*  27th  of  November  1860," 


Ju9e  9. 

Nov.e. 

A  deposit  of 
title-deeds,   to 
be  delivered  to 
a  solicitor,  for 
the  purpose  of 
preparing  a 
legal  mortgage 
to   secure    an 
antecedent 
debt  and  fu- 
ture advances, 
though    there 
be   no  agree- 
ment in  writ- 
ing for  a  mort- 
gage, consti- 
tutes a   valid 
equitable 
mortgage. 


BULFIN  V.  DUNNE. 

This  was  a  motion  by  way  of  appeal  from  a  decretal  order  of 
Master  Murphy,  of  the  9th  of  May  I860,  by  which  he  declared 
that  the  deposit  of  a  lease  of  the  Portobello  Hotel,  on  the  8th  of 
January  1859)  constituted  a  valid  equitable  mortgage.  The  lease 
was  given  to  the  petitioner,  and  delivered  to  his  solicitor  by  Peter 
Ryan,  the  lessee,  for  the  purpose  of  preparing  a  deed  of  mortgage 
of  the  property,  to  secure  a  debt  due  to  the  petitioner,  and  further 
advances.  A  draft  of  the  proposed  mortgage  was  prepared  and 
given  to  Peter  Ryan,  for  his  approval;  but  he  retained  it;  and 
no  mortgage  was  executed.  No  memorandum  was  given  by  Ryan 
when  he  gave  the  lease.  The  premises,  being  leasehold,  were  sold 
under  2k  fieri  facicuy  and  conveyed  by  the  SherifiT  to  the  respondent, 


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CHANCERY  REPORTS.  199 

DuDDe.  The  petition  prayed  m  foreclosure  and  sale.  The  Master 
to  whom  the  matter  had  been  referred,  under  the  15th  section  of 
the  Court  of  Chancery  (Ireland)  Regulation  Act  1850,  by  the 
order  appealed  from,  ordered  a  sale,  in  pursuance  of  the  prayer 
of  the  petition.  The  particular  facts  of  the  case  kre  fully  stated 
in  the  judgment. 


1860. 
Rolls. 


SiaUment, 


Mr.  Brewster^  Mr.  F,  W,  Walsh  and  Mr.  Hamill^  for  the  appeal. 

The  single  proposition  on  which  the  Master's  order  is  founded  is, 
that  a  person  who  delivers  his  original  title-deeds  to  the  solicitor  for 
the  lender,  for  the  purpose  of  preparing  the  legal  mortgage,  thereby 
mortgages  his  property.  There  was  no  agreement  in  this  case  for 
any  particular  mortgage.  A  debt  was  due;  but  there  was  no 
arrangement  as  to  the  time  when  it  was  to  be  paid ;  and,  although 
a  mortgage,  was  contemplated,  the  terms  of  it  had  not  been  agreed 
on.  The  only  express  authority  to  support  the  Master's  order  is  Lord 
Eldon's,  in  Ex  parte  Bruee  (a)  ;  and  that  is  a  very  short  case.  The 
facts  are  not  fully  stated  in  the  report  of  the  case ;  and  it  is  opposed  to 
Lord  Eldon's  own  opinion  expressed  in  Ex  parte  Hooper  (b)  and 
Ex  parte  Pearse  and  Protheroe  (e).  In  Edge  v.  Worthington  (if),  the 
question  did  not  arise.  •  A  legal  mortgage  had  been  executed ;  and 
there  was  no  further  advance  to  be  made,  tn  Hockley  v.  Bantock  (0), 
in  Keys  y.  Williams  (f)  and  James  v.  Rice  (^),  there  was  an  express 
agreement  for  an  equitable  mortgage,  independently  of  the  delivery  of 
the  title-deeds,  for  the  purpose  of  preparing  the  legal  mortgage.  It  is 
that  express  agreement  which  constitutes  the  equitable  mortgage; 
and  the  deposit  of  the  deeds  is  only  evidence  of  the  agreement : 
Russel  v.  Russel  (h).  If  the  deposit  of  the  deeds  may  be  referred 
to  any  other  purpose — if  they  are  not  deposited  expressly  as  a  pledge 
for  securing  a  particular  sum,  there  is  no  equitable  mortgage:  Bran* 
den  v.   Boles  (t)  ;   Norris  v.   Wilkinson  (A)  ;  Brisiok  v.  Man- 


Argument 


(a)  1  Boae,  374. 
(e)  I  Bnck,  525. 
(e)  I  Robs.  144. 
{g)  5  D.,  M.  &  G.  461. 
(0  PWc  in  Ch.  875. 


(6)  1  Mer.  7. 

(d)  1  Ck)x,  211. 

09  3  Y.  &  Col.,  Exch.,  62. 

(*)  1  Br.  C.  C.  269. 

(A)  12  Yes.  192. 


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200 


CHANCERY  REPORTS. 


1860. 
Rolh. 

^ ^ ' 

BULFIN 
V. 

Arguwient* 


Nov.  6. 
Judgment, 


ners  (a) ;  Ex  parte  Bulteei  (b) ;  5  Jarwum  an  Camvej^ncingj  p.  1  i  3 ; 
Spooner  y.  Weyman  (c). 

Mr.  D,  Sherlock  and  Mr.  2).  C  Berou,  in  support  of  the  MaB- 
ter's  order,  relied  on  Ex  parte  Bruce  (<Q,  and  were  stopped  by  the 
Court. 


The  Master  of  the  Rouls. 

This  18  a  foreclosnre  petition,  founded  on  an  agreement  for  a 
mortgage  and  deposit  of  a  lease,  in  the  petition  mentioned.  The 
case  having  been  referred  to  Master  Murphy,  under  the  15<th  section 
of  the  statute,  he  made  an  order,  which  was  signed  on  the  9th  of 
May  1 860,  which  order  contained  the  following  declaration : — ''  It  is 
hereby  decreed  and  declared  that  the  agreement  m  the  petition 
mentioned,  and  the  deposit  of  the  lease,  bearing  date  the  4th  of 
December  1856  (in  the  petition  mentioned),  upon  the  8th  day  of 
January  18599  constitute  a  vldid  equitable  mortgage  for  the  sum 
due  and  owing  to  the  petitioner  at  the  time  of  the  agreement  of 
the  30tlL  of  December  1858,  in  the  said  petition  mentioned,  amount- 
ing  to  the  sum  of  £635.  Is.  5d. ;  and  declare  the  same  a  charge  upom 
the  said  mortgaged  premises  accordingly."  And  then  fc41ows  a 
declaratioa  that  the  petitioner  is  entitled  to  the  costs  of  the  snit ; 
and  a  sale  of  the  PortobeUo  Hotel  (the  property  demised  by  the 
said  lease)  is  directed,  in  default  of  payment  of  the  sum  doe  to 
the  petitioner.  The  notice  of  appeal  seeks  the  rey^rsal  of  the 
said  order,  and  that  the  petition  may  be  dismissed. 

The  facts  appear  to  be  as  follow  :-^By  indenture  of  lease,  bearing 
date  the  4th  of  December  1856,  the  Grand  Canal  Company  .demised 
to  Peter  Ryan,  his  executors,  administrators  and  assigns,  the  pre« 
mises  known  as  the  PortobeUo  Hotd,  for  a  term  of  ninety-nina  years, 
at  the  rentof  £125.  The  leasewaa  registered  on  the  27th  of  June  1857, 
but  no  question  turns  on  that.  Peter  Ryan  entered  into  the  posses- 
sion  of  the  premises,  and  carried  on  the  business  9f  an  hotel-keeper 


(a)  9  Mod.  284. 
(c)  20  Bear.  607. 


ifi)  9  Cox,  243. 
(d)  1  Rose,  394. 


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therein.  The  petitioner  was  and  is  a  wholesale  grocer  ;  and  from  the 
time  Peter  Ryan  commenced  business  in  the  hotel,  the  petitioner  sap- 
plied  him  with  groceries,  wines  and  spirits,  and  other  shop  goods,  to  a 
large  amount.  In  the  month  of  December  1858,  Peter  Ryan  was  in- 
debted to  the  petitioner  in  the  sum  of  about  £574,  for  goods  sold  and 
'delivered  by  the  petitioner  to  the  Said  Peter  Ryan.  Peter  Ryan  ap- 
plied to  the  petitioner  to  accommodate  him  with  a  further  advance 
of  money  and  goods,  and  the  petitioner  agreed  to  advance  £229. 
Os.  9d.,  which,  together  with  the  sum  then  doe,  would  make  up 
the  sum  of  £800,  on  the  terms  proposed  by  Peter  Ryan,  that  he 
would  grant  his  interest  in  the  hotel  and  premises  at  Portobello,  and 
the  furniture  and  fixtures  therein,  on  mortgage  to  the  petitioner. 
The  petitioner  agreed  to  said  proposal,  on  the  30th  of  December 
1858;  and  the  petitioner,  on  the  faith  of  said  agreement,  did,  on 
that  day,  deliver  goods  to  Peter  Ryan,  to  the  value  of  £24.  12s.  2d. 
Peter  Ryan,  afterwards,  about  tbe  7th  of  January  1859>  called  on 
the  petitioner,  upon  the  subject  of  the  proposed  loan,  and  stated  that 
the  tenant's  part  of  the  original  lease  of  the  4th  of  December  1856| 
of  the  hotel  premises,  was  then  in  the  possession  of' Messrs.  Henry 
Rooke  and  Sons,  as  the  solicitors  of  the  Grand  Canal  Company,  the 
lessors  named  in  said  lease,  and  who  claimed  a  lien  thereon  for  the 
amount  of  £3.  178.  4d.,  for  the  costs  of  registering  the  lease.  The 
petitioner  then  handed  to  the  said  Peter  Ryan  the  sum  of  £4,  for  the 
purpose  of  paying  the  said  costs,  and  getting  up  the  tenant's  part  of 
said  lease,  and  then  directed  Peter  Ryan  to  hand  said  lease  to  James 
Patrick  Madden,  the  petitioner's  solicitor,  in  order  to  enable  the  said 
James  Patrick  Madden  to  prepare  the  necessary  mortgage,  pursuant 
to  the  said  agreement.  Peter  Ryan  paid  the  Company's  solicitor  the 
said  sam  of  £3.  178.  4d.,  and,  having  got  the  said  lease  from  the 
Company's  solicitors,  he  handed  it  to  the  petitioner's  solicitor,  for  the 
purpose  of  preparing  a  mortgage  of  the  said  premises,  both  as  secu- 
ritj  for  the  debt  then  due,  and  as  a  security  for  the  future  advances, 
pursuant  to  said  agreement  with  the  petitioner ;  and,  at  the  same 
time,  Peter  Ryan  gave  James  Patrick  Madden  the  necessary  in- 
formation, in  order  to  have  the  deed  of  mortgage  prepared.  James 
Patriek  Madden  wrote  dow?^,  in  the  presence  of  Peter  Ryan,  the 


1860. 
Rotts. 

' . ' 

BUIiFIN 

V, 
DUNNE. 

JudfffMtU, 


VOL.   11. 


26 


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1860. 
RoUs. 


Judgment. 


heads  of  the  mortgage,  which  were  read  over  and  approved  of  hj 
said  Peter  Ryan.  James  Patrick  Madden  proceeded  to  draft  the 
mortgage,  and,  while  same  was  being  prepared,  the  petitioner,  on 
the  10th  of  January  1869,  at  the  request  of  Peter  Ryan,  made  a 
further  advance  to  him  of  the  sum  of  £31,  which  sum  of  £31  was 
part  of  the  sum  agreed  to  be  advanced.  James  Patrick  Madden 
had  prepared  the  draft  of  the  mortgage  on  the  10th  of  January 
1859i  and  it  was  then  lying  in  his  office,  but  a  blank  was  left  at  the 
end  thereof  for  the  schedule  of  furniture,  Peter  Ryan  having  under- 
taken to  furnish  such  schedule.  Peter  Ryan,  on  or  about  the  said 
10th  day  of  January  1859,  called  at  the  office  of  James  Patrick 
Madden,  and  left  with  him  a  list  of  the  furniture,  which  was  to 
compose  the  schedule  at  the  end  of  the  said  indenture  of  mortgage. 
On  or  about  Tuesday  the  41th  of  January  1859»  Peter  Ryan  called 
at  the  office  of  James  Patrick  Madden,  who  handed  to  Peter  Ryan 
the  draft  of  the  mortgage  for  his  approval;  Peter  Ryan  did  not 
object  to  the  draft,  but  took  it  away,  and  never  returned  same  either 
to  the  petitioner  or  to  James  Patrick  Madden-;  but  the  said  draft 
was  returned  to  the  office  of  James  Patrick  Madden,  on  the  13th  of 
May  1859,  by  James  Sinnott,  the  solicitor  for  John  Dunne  and 
Patrick  Beahan,  trustees  named  in  the  marriage  settlement  of  Peter 
Ryan,  which  settlement  bears  date  the  4th  of  July  1854.  The  said 
John  Dunne  and  Patrick  Beahan,  trustees  of  the  said  settlement, 
having  revived  a  judgment  executed  to  them  by  Peter  Ryan,  at  the 
time  of  the  execution  of  the  marriage  settlement,  9i.  fieri  fac%a$  was 
issued  thereon,  on  the  1 1th  of  January  1859»  and  the  Sheriff  of  the  city 
of  Dublin  seized  thereunder  the  said  hotel  premises  and  the  furniture. 
Cautionary  notices  were  serv^ed,  by  the  petitioner,  on  the  Sheriff  and 
on  John  Dunne  and  Patrick  Beahan,  stating  his  claim  as  equitable 
mortgagee*  The  sale  by  the  Sheriff,  under  said  writ,  of  the  lease- 
hold interest  and  term  of  years  in  said  hotel  premises  at  Portobello, 
took  place  on  the  10th  of  March  1859,  and  the  said  John  Dunne 
was  declared  the  purchaser,  for  the  sum  of  £40.  An  assignment  of 
«aid  premises  wsa  executed  by  the  Sheriff,  and  by  said  John  Dunne. 
The  question  is,  whether  there  was  a  valid  equitable  mortgage 
to  the  petitioner,  of  the  Portobello   Hotel  ?    If  there  was,  the 


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«ale  to   the  respondent  John    Dunne,   under   the  jUri  faeiaty  ia        1860. 

BolU. 
subject  to  the  equitable  mortgage,  of  which  he   had  full  notice. 

If  there  was  no  equitable  mortgage,  John  Dunne,  as  purchaser 
under  the  execution,  is  entitled  to  dismiss  the  petition.  It  was 
decided  by  Lord  Thurlow,  in  the  case  of  Russel  v.  Russel{a\  also  Judgmmu. 
reported  in  1  White  Sf  Tudoi^s  Leading  Cases^  that  notwithstand- 
ing the  Statute  of  Frauds,  a  mere  deposit  of  title-deeds  by  a  debtor, 
f<^  the  purpose  of  securing  a  sum  of  money,  although  there  was  no 
writing  manifesting  the  purpose  for  which  the  deposit  was  made, 
gave  his  creditor,  in  whose  hands  they  were  placed,  an  interest 
in  the  land  to  which  they  related,  so  as  to  entitle  him  to  file  a 
bill  for  a  sale.  That  decision,  although  disapproved  of,  has  been  con- 
stantly acted  upon,  and  is  regarded  as  a  binding  authority.  Several 
of  the  cases  subsequent  to  Russel  v.  Russel  are  collected  in  Messrs. 
White  Sf  Tudof^s  note  to  that  case.  It  is,  however,  contended, 
on  the  part  of  the  respondent,  that  the  deposit  in  this  case  was 
for  the  purpose  of  preparing  a  legal  mortgage,  and  that  in  such 
cases  the  deposit  does  not  constitute  a  good  equitable  mortgage. 
There  is  a  conflict  of  authority  on  the  question,  whether  a  deposit 
of  title-deeds,  for  the  purpose  of  preparing  a  legal  mortgage,  con- 
stitutes a  good  equitable  mortgage?  The  several  cases  on  the 
subject  are  collected  by  Messrs.  White  Sf  Tudor^  in  the  note  to 
Russel  V.  RusseL  With  respect  to  the  decision  of  Sir  W.  Grant, 
in  Norris  v.  Wilkinson^  the  evidence,  I  think,  clearly  showed  that 
the  deeds  were  not  lodged  to  secure  the  debt.  That  case,  there- 
fore, does  not  affect  the  question.  In  the  cases,  however,  of 
Branden  v.  Boles  (6),  Ex  parte  Bulteel  (c).  Ex  parte  Hooper  (d), 
and  Ex '  parte  Pearse  and  Protheroe  {e\  it  has  been  decided 
that  where  deeds  are  not  deposited  expressly  as  a  pledge  fot 
securing  a  particular  sum,  but  are  delivered  to  a  solicitor  for  the 
purpose  of  enabling  him  to  prepare  a  security  to  be  thereafter 
executed,  the  deposit  does  not  constitute  a  good  equitable  mortgage. 
On  the  other  hand.  Lord  Eenyon,  in  Edge  v.   Wortkington  (f)^ 


(a)  1  B.  C.  C.  260. 
(c)  2  Cox.  243. 
(e)  1  Back,  525« 


(6)  Prec.  in  Ch.  375. 
(rf)  1  Mcr.7. 
09  lCox,2lU 


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CHANCERY  REPORTS. 


1860. 
Rotts. 


Judgment. 


held  that  an  agreement  to  give  a  legal  mortgage,  with  a  deposit 
of  the  title-deeds,  for  the  purpose  of  preparing  the  legal  mort- 
gage, constituted  a  valid  equitable  mortgage.  Lord  Eldon  was 
of  the  same  opinion,  in  Ex  parte  Bruce  {a),  where  he  observed 
that  tlie  principle  of  equitable  mortgages  was,  that  the  deposit  of  the 
deeds  was  evidence  of  the  agreement ;  but,  if  the^  were  deposited  for 
the  express  purpose  of  preparing  the  security  of  a  legal  mortgage, 
that  was  stronger  than  an  implied  intention.  This  case  has  been  fol- 
lowed by  Lord  Giffbrd,  M.  R.,  in  Hockley  v.  Bantock  (6).  In  Ke^ft 
V.  Williams  (c),  Lard  Abinger,  in  giving  judgment,  said  that,  "  If 
it  were  necessary  to  decide  the  specific  point,  I  should  say  that 
an  agteement  to  grant  a  mortgage  for  money  already  advanced, 
and  a  deposit  of  deeds,  for  the  purpose  of  preparing  a  mortgage, 
is  in  itself  an  equitable  mortgage  by  deposit ;  but  here  the  deposit 
was  evidently  made  as  a  present  security,  as  well  as  with  a  view 
of  preparing  a  future  mortgage."  A  sale  was  decreed  in  that 
case,  in  default  of  payment.  Lord  Eldonf's  opinions,  in  Ex  parte 
Hooper  (cQ,  9JoA  Ex  parte  Pearse  and  Protheroe{e)^  cannot  be  recon- 
ciled with  his  decision  in  Ex  parte  Bruce;  but^  it  will  be  observed, 
that  neither  the  last-mentioned  case,  nor  Edge  v.  Worihingtom^ 
were  cited  in  those  cases.  Messrs.  White  Sf  Tudor^  after  referring 
to  the  case,  state  that,  "  Upon  the  whole,  taking  into  consideration 
that  Branden  v.  Boles,  and  Brisiek  v.  Manners^  Were<lecided  before 
JRussel  V.  Russely  and  that  Edge  v.  Wortkis^ton  was  neither  in 
print,  nor  noticed,  when  Norris  v.  Wilkinson  was  argued  before 
Sir  W.  Grant,  M.  R.,  we  may  arrive  at  the  conclusion  that  the 
balance  of  authority  is  in  favour  of  the  proposition  that  a  delivery 
of  deeds,  for  the  purpose  of  preparing  a  legal  mortgage^  constitutes 
in  fact  a  valid  equitable  mortgage." 

I  shall  follow  the  decisions  of  Edge  v.  Wortkington,  Ex  parte 
Bruce^  Hockley  v.  Bantock,  and  the  opinion  of  Lord  Abinger,  in 
Keys  V.  Williams,  on  the  authority  of  which  cases,  I  presume, 
the  Master  decided.    The  motion  must  be  refused,  with  costs. 

(a)  1  Rose,  374.  (6)  1  Bobs.  141. 

(c)  3  Y.  &  p.,  Ex.  Cas.,  62.  (d)  I  Mcr.  7. 

(e)  1  Back,  527. 


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1860. 
RoUs. 


GRAY  V.   ROBINSON.  ^186L^' 

Jon.  2a 

In  Hilary  Term  1844,  Hugh  Gray  recovered  a  judgment  in  the  A    testator 

bequeathed 

Court  of  Queen's  Bench  against  Meredith  Thompson  and  Charles  one-half  of  the 

interest  of  a 

Thompson,  in  the  penal  sum  of  £4400,  conditioned  to  pay  £2200  gam  to  A  and 

with  interest  at   £5^  per  cent.      By   his  will,  bearing  date  the  other  half  to  C 

15th  of  August   1855,    Hugh  Gray  bequeathed  the  sum  secured  ^^^  na^c^^ 

by  the  judgment,  in  the  following  terms: — "And  as  regards  one  the'*dMrthof 

other  bond  passed  to  me  by  my  nephews  Meredith  Thompson  and  ^»  ^»  9"^^ 

Charles  Thompson,  on  which  judgments  have  been  entered,  I  will  queathed  the 

principal  to  1&, 
and  bequeath  one- half  of  the  interest  due  thereon  at  the  time  of  u^d  he  ap- 

pointed   resi- 
my  death,  and  thereafter  to  grow  due  thereon,  to  my  said  nephews  duar^  legatees. 

A  died,  and 
Meredith  and  Charles  Thompton ;  and  the  other  half  of  the  said  then  B,  leav- 

ing  C  and  D 
interest  I  give  and  bequeath  to  my  nephews  Patrick  Gray  and  soryiving. 

John  Gray  during  their  natural  life ;   and,  after  the  death  of  my      ^*^»    *hat 
^  ^  »  '  •'no  part  of  the 

said  two  nephews,  then  I  bequeath  said  bond  debt  and  the  principal  principal     or 
^  r         r       5ntej^ert   went 

som  thereby  secured,    to   Hush   Gray,  son  of  my  nephew  John  to   E  daring 
■^  .         *  \  '        "^  the  life  of  0 

Gray,  and,  if  he  die  without  lawful  issue,   then  I  give  same  to  andD. 

Hugh  Gray's  next  brother; and  I  appoint  my  said  wife  that  *  the  ex- 

and  Andrew  Johnston,  son  of  Doctor  Johnston  of  Dromahare,  my  ?^*"*  t^^th^' 

residuary  legatees."      Meredith   Thompson  had  died  in  September  residuary  lega- 

'      °  tees,    was  en- 

1850.     The  testator,  Hugh  Gray,  died  on  the  13th  of  February  titled  to  the 

interest  of  one- 
1856,  and  Charles  Thompson  died  in  September  1856.     The  pre-  half  daring  the 

lives  of  C  and 
seat  suit  was  brought  for  the  administration  of  the  assets  of  Hugh  D. 

Gray ;  and  a  question  arose  before  the  Master  as  to  the  interest  Statement, 
on  the  moiety  of  the  said  judgment  debt  bequeathed  to  Charles  and 
Meredith  Thompson,  from  the  death  of  Charles  Thompson  until  the 
death  of  the  survivor  of  the  four  nephews,  when  the  entire  principal  > 
was  bequeathed  to  Hugh  Gray.  The  Master,  by  his  order,  which 
is  stated  at  length  in  his  Honor's  judgment,  decided  that  the  residu- 
ary legatees  were  entitled  to  the  interest  during  that  period.  Cecilia 
Thompson,  the  personal  representative  of  Charles  Thompson,  moved, 


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1860. 
RolU. 

GBAT 

9. 

BOBinSON. 

Stateiment. 


by  way  of  appeal  from  the  Master's  order,  that  it  might  be  varied, 
by  declaring  her  entitled  to  a  moiety  of  the  interest  of  the  judgment 
debt  which  should  accrue  during  the  lives  of  Patrick  Gray  and  John 
Gray,  and  the  interest  due  since  the  death  of  Charles  Thompson. 
A  notice  of  appeal  was  also  served  on  behalf  of  Hugh  Gray 
and  John  Gray  junior,  the  sons  of  John  Gray,  claiming  a  moiety 
of  the  judgment  debt,  and  interest  on  such  moiety  from  the  death 
of  the  said  Charles  Thompson. 


Argument.  Mr.  BrewHer  and  Mr.  Incej  for  Cecilia  Thompson,  argued  that 

there  was  a  complete  gift  of  the  principal  and  interest,  and  that  no 
intestacy  as  to  any  portion  of  it  was  contemplated  by  the  testator. 
There  was  no  gift  by  implication  of  the  interest  of  the  Thompsons' 
moiety  to  John  Gray  or  Hugh  Gray.  The  true  construction  of  the 
will  was,  that  the  interest  of  that  moiety  was  bequeathed  indefinitely, 
or  during  the  lives  of  the  four  nephews  of  the  testator,  and  the  life  of 
the  survivor  of  them.  They  cited  Jonei  v.  Randall  (a) ;  Townhf 
V.  Bolton  (6) ;  Pearce  v.  Edmeades  (c) ;  Bignold  v.  Giles  {d). 

Mr.  J.  M^Mahon^  for  John  Gray  jun.  and  Hugh  Gray,  argued  that 
the  will  should  be  construed  distributively  to  bequeath  the  sum  to 
the  Thompsons,  and,  on  the  death  of  the  survivor  of  them,  that 
moiety,  with  principal  and  interest,  was  to  go  over:  Kay  v. 
Kay  (e) ;  Drew  v.  Kellick  (f)  ;  Willie  v.  Douglas  (g) ;  Lainson  v. 
Lainson  (h) ;  Swan  v.  Holmes  (t). 

Mr.  ChaHerton  and  Mr.  Levinge^  in  support  of  the  order,  cited 
Swan  V.  Holmes  (k) ;  Bignold  v.  Giles  (/) ;  LiU  ▼.  Lill  (m) ; 
M^Dermot  v.  Wallace  (n) ;  Windham  v.  Windham  (o) ;  Heath  v. 
Perry  (jpi). 

(a)  Jac.  &  W.  100.  (A)  I  M.  &  E.  148. 

(c)  3  Y.  A  C,  B.  C,  246.  (d)  4  Dr.  843. 

(e)  4  De  G.,  M.  &  G.  73.  (jQ  1  De  G.  ft  Sm.  266. 

(g)  10  Beav.  47.  (h)  5  De  G.,  M.  &  G.  574. 

(0  19  Beav.  471.  (A)  19  Beav.  476. 

(0  Uin  supra.  (m)  23  Bear.  446. 

(n)  5  Beav,  142.  (o)  3  B.  C.  C.  57. 

(p)  3  Atk.  101/ 


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CHANCERY  REPORTS.  .  207 

The  Masteb  of  thb  Rolls.  1861. 

BolU. 
A  motion  has  been  made  in  this  case,  on  behalf  of  Cecilia  Thomp-     ' , ' 

QRAY 

SOD,  by  way  of  appeal  from  the  order  of  J.  J.  Murphy,  Esq.,  the  Mas-  ^^ 

ter  in  this  matter,  bearing  date  the  4th  of  February,  and  filed  the  26th  bobinsow. 
of  June  1860.  The  notice  of  motion  seeks  that  the  said  order  may  jan,  28. 
be  set  aside  or  varied,  so  far  as  it  declares  that  Andrew  C  Johnston,  "  y™«»*« 
the  residuary  legatee  in  the  will  of  Hugh  Gray,  is,  during  the  lives 
of  the  petitioners,  Patrick  Gray  and  John  Gray  the  elder,  and  the 
life  of  the  survivor  of  them,  entitled  to  a  moiety  of  the  interest  on 
the  judgment  in  the  petition  mentioned,  obtained  by  the  testator, 
Hugh  Gray,  against  Meredith  Thompson  and  Charles  Thompson, 
and  the  arrears  of  the  moiety  of  the  interest  which  accrued  on  the 
said  judgment,  since  the  death  of  Charles  Thompson ;  and  the  said 
notice  seelcs  that  it  should  be  declared  that  the  said  Cecilia  Thomp- 
son,  as  personal  representative  of  the  said  Charles  Thompson,  is, 
according  to  the  true  construction  of  the  said  will,  entitled,  daring 
the  lives  of  the  said  Patrick  Gray  and  John  Gray  the  elder,  and 
the  life  of  the  survivor  of  them,  to  the  said  moiety  of  the  interest  to 
accrue  on  the  said  judgment  debt,  and  the  arrears  of  said  moiety 
which  have  accrued  since  the  death  of  the  said  Charles  Thompson. 
Another  notice  of  motion,  by  way  of  appeal  from  the  said  order,  has 
been  served  on  the  part  of  the  minor  petitioners,  Hugh  Gray  and 
John  Gray  the  younger,  seeking  to  set  aside  the  declaration  in  the 
Master^s  order,  which  I  have  already  stated,  and  that,  in  lieu  of  said 
declaration,  it  may  be  declared  that  the  petitioner  Hugh  Gray, 
upon  the  death  of  the  said  Charles  Thompson,  became  absolutely 
entitled  in  possession,  with  an  executory  devise  over  to  his  brother, 
the  petitioner  John  Gray  the  younger,  in  the  event  of  the  said 
Hugh  Gray  dying  l¥ithout  issue,  to  the  moiety  of  the  judgment 
debt,  together  with  the  interest  on  the  said  moiety  of  the  said  judg- 
ment, which  accrued  since  the  death  of  the  said  Charles  Thompson. 
It  appears  to  me  that  this  latter  notice  is  untenable,  for  th^  reasons 
I  shall  hereinafter  state.  The  question  in  the  case,  therefore,  is, 
whether  the  motion  of  Cecilia  Thompson  is  well  founded  ?  and  that 
depends  on  the  construction  to  be  put  on  the  will  of  Hugh  Gray, 
deceased,  which  bears  date  the  15th  of  August  1855. 


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208 


CHANCERY  REPORTS. 


1861. 
Rolls. 


The  Master's  order  declares  that  Hugh  Graj,  the  testator,  was 
in  his  lifetime^   and  at  the  time  of  his  decease,  entitled,  amongst 

OSA.T  ' 

^^  Other  personal  property,  to  a  certain  judgment  obtained  bj  the 

ROBINSON,  said  testator  Hugh  Gray,  against  one  Meredith  Thompson  and 
Judgment,  ^°®  Charles  Thompson,  in  the  Court  of  Queen's  Bench,  in 
Hilary  Term  1844,  in  the  penalty  of  £4400,  conditioned  to  pay 
£2200,  with  interest  at  £5^  per  cent,  per  annum.  The  order 
further  declares,  that  the  testator  Hugh  Gray  died  on  the  Idth 
of  February  1856,  and  that  probate  of  his  will  was  granted  to  the 
respondents,  Roger  D.  Robinson  and  the  Rev.  John  Hamilton. 
That  Meredith  Thompson,  in  the  will  named,  died  in  September 
1850,  in  the  testator's  lifetime,  and  Charles  Thompson  died  in 
September  1856,  after  the  death  of  the  testator;  and  the  order  then 
declares  that,  in  the  said  events,  and  according  to  the  true  construe* 
tion  of  the  said  will,  the  petitioners  Patrick  Gray  and  John  Gray, 
the  two  nephews  of  the  testator,  are,  under  and  by  virtue  of  the 
bequest  in  the  said  will,  "  entitled,  during  their  natural  lives,  to  a 
moiety  of  the  interest  due,  and  to  accrue  due,  on  foot  of  the 
said  judgment  debt  for  £2200 ;  and  that,  after  the  death  of  the 
said  Patrick  Gray  and  John  Gray,  the  said  Hugh  Gray,  son 
of  the  said  John  Gray,  or,  in  the  event  of  the  said  Hugh  Gray 
dying  without  leaving  lawful  issue  at  the  time  of  his  death,  his  next 
brother,  the  petitioner  John  Gray,  will  be  absolutely  entitled  to  the 
said  judgment  debt,  and  the  principal  sum  of  £2200  thereby  secured; 
and  it  was,  by  the  said  order,  further  adjudged  and  declared  that 
Cecilia  Thompson,  the  personal  representative  of  the  said  Charles 
Thompson,  is  entitled  to  a  moiety  of  the  arrear  of  interest  upon 
said  judgment  due  at  the  time  of  the  death  of  the  said  testator  Hugh 
Gray  ;  and  also  to  a  moiety  of  the  said  interest  which  accrued  due 
from  the  death  of  the  said  testator  Hugh  Gray,  up  to  the  time  of 
the  death  of  the  said  Charles  Thompson ;  and  it  is  thereby  fur- 
ther declared,  that  Andrew  C.  Johnston,  the  residuary  legatee  of 
said  testator,  is,  during  the  natural  lives  of  the  petitioners  Patrick 
Gray  and  .John  Gray,  and  of  the  survivor  of  them,  entitled  to  the 
said  moiety  of  the  interest  to  accrue  on  the  said  judgment  debt, 
and  to  the  arrears  of  the  moiety  of  the  interest  which  have  accrued 
due  since  the  death  of  the  said  Charles  Thompson.     The  testator, 


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CHANCERY  REPORTS. 


209 


Hagh  Graj,  deceased,  bj  his  will,  bequeathed  a  certain  bond  therein 
mentioned,  to  his  wife ;  and  no  question  arises  upon  that  bequest. 
The  clause  on  which  the  question  arises  is  as  follows : — "  And  as 
regards  one  other  bond,  passed  to  me  by  my  nephews  Meredith 
Thompson  and  Charles  Thompson,  on  which  judgments  have  been 
entered,  I  will  and  bequeath  one-half  of  the  interest  due  thereon,  at 
the  time  of  my  death,  and  thereafter  to  grow  due  thereon,  to  my 
said  nephews  Meredith  Thompson  and  Charles  Thompson ;  and  the 
other  half  of  the  said  interest  I  bequeath  to  my  nephews  Patrick 
Gray  and  John  Gray,  during  their  natural  life  ;*  and  after  the  death 
of  my  said  four  nephews,  then  I  bequeath  said  bond  debt,  and  the 
principal  sum  thereby  secured,  to  Hugh  Gray,  son  of  my  nephew 
John  Gray ;  and  if  he  die  without  lawful  issue,  then  I  give  same 
to  Hugh  Gray's  next  brother."  After  several  other  devises  and 
bequests,  there  is  the  following  devise : — '*  And  I  appoint  my  said 
wife  and  Andrew  Johnston,  son  of  Doctor  Johnston,  formerly  of 
Dromahare,  my  residuary  legatees.'' 

It  has  not  been  stated,  during  the  argument,  whether  the  testa- 
tor's wife  is  dead  ;  but  I  presume,  from  the  declaration  in  the  Mas- 
ter's order  in  favour  of  Andrew  Johnston,  in  the  order  called 
Andrew  C.  Johnston,  that  the  testator's  wife  died  in  his  lifetime ; 
and  no  question  has  been  raised  or  argued  as  to  whether,  if  the 
residuary  legatees  are  entitled,  that  Andrew  C.  Johnston,  one  of  such 
residuary  legatees,  is,  under  the  events  which  have  happened,  enti- 
tled. It  is  not  necessary,  from  the  view  I  take  of  the  case,  to  inquire 
into  the  facts,  or  decide  that  question.  With  respect  to  the  notice  of 
appeal  served  on  the  part  of  the  minors,  Hugh  Gray  and  John  Gray 
the  younger,  it  is,  in  my  opinion,  unsustainable,  as  the  bequest  of 
the  principal  of  the  bond  and  judgment  to  Hugh  Gray,  and,  if  he 
should  die  without  lawful  issue,  to  his  next  brother,  the  said  John 
Gray  the  younger,  was  to  take  effect  after  the  death  of  the  testator's 
four  nephews,  in  the  will  named — and  two  of  the  said  nephews  are 
still  living — and  it  is  clear  that  if  the  will  is  to  be  construed  accord- 
ing to  its  plain  language,  that  bequest  has  not  taken  effect,  either  in 


1861. 

RolU. 

«_    ^^      -* 

GRAY 

V. 

ROBINSON. 

Judgment. 


Sic. 


vol*.  11. 


27 


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Judgment. 


210  CHANCERY  REPORTS. 

1861.        the  whole  or  in  part.     That  motion  will  be,  therefore,  refused  with 
RoOs.  • 

V— ->, — ^     costs. 

^*^^  The  testator's  nephews  Patrick  Gray  and  John  Gray  the  elder  do 

ROBINSON,  npt  allege  that  they  are  entitled  by  implication  to  the  half  of  the  in-  . 
terest  on  the  said  judgment  bequeathed  to  Meredith  Thompson  and 
Charles  Thompson,  both  of  whom  are  dead,  Meredith  Thompson 
having  died  in  the  testator's  lifetime,  and  Charles  Thompson  having 
survived  the  testator ;  and,  therefore,  the  question  is,  whether  the 
said  half  of  the  interest  on  the  said  judgment,  bequeathed  to  Mere- 
dith Thompson  and  Charles  Thompson,  deceased,  is  now  payable  to 
the  appellant  Cecilia  Thompson,  as  the  personal  representative  of 
Charles  Thompson,  during  the  lifetime  of  Patrick  Gray  and  John 
Gray  the  elder,  the  other  nephews  of  the  testator?  or  whether  the 
saie  half  of  the  interest  is  to  be  considered  as  having  lapsed  ?  and 
whether  same  is  payable,  as  the  Master  has  decided,  to  the  residuary 
legatee,  during  the  lifetime  of  Patrick  Gray  and  John  Gray  the 
elder  ? 

There  are  only  three  constructions  of  which  the  clause  in  ques- 
tion is  capable ;  and  in  considering  what  is  the  true  construction 
with  respect  to  the  interest  on  the  judgment,  and  to  whom  payable, 
it  is  perfectly  clear,  in  my  opinion,  that  the  principal  was  not  payable 
under  the  clause  bequeathing  the  principal,  until  the  death  of  all 
the  four  nephews  of  the  testator,  viz.,  Meredith  Thompson,  Charles 
Thompson,  Patrick  Gray  and  John  Gray.  There  can  be  but  little 
doubt  that  the  testator  intended  to  dispose  of  the  entire  interest  on 
the  judgment  until  the  principal  became  payable ;  and  that  when  he 
bequeathed  half  of  the  interest  to  two  of  his  nephews,  and  the  other 
half  of  the  interest  to  the  other  two  nephews,  he  intended  to  dispose 
of  the  whole  interest  until  the  principal  was  payable,  and  did  not 
intend,  as  the  Master  has  held,  that  there  should  be  an  intestacy  as 
to  half  of  the  interest.  It  is  admitted,  by  all  the  Counsel,.that  there 
was  no  bequest  by  implication,  to  Patrick  and  John  Gray,  of  the 
interest  bequeathed  to  the  Thompsons,  who  are  dead ;  and  Patrick 
and  John  Gray  make  no  claim ;  and  if  they  have  no  claim,  the 
question  is,  what  is  the  effect  of  the  clause?  Patrick  and  John 
Gray  making  no  claim,  there  are  only  three  possible  constructions 


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CHANCERY  REPORTS.  211 

tQ  be  pot  on  the  daiise.     The  clause  in  question,  leaving  out  what        1861- 
does  not  affect  the  construction,  is  in  these  words : — "  I  give  and 


bequeath  one-half  of  the    interest  due  and  to  grow  due   on  the  ^^ 

judgment,  to  my  nephews  Meredith  Thompson  and  Charles  Thomp-    bobxhsoii. 
son ;  and  the  other  half  of  the  said  interest  I  give  and  bequeath  to     judymetu, 
mj  nephews  Patrick  Gray  and  John  Gray,  '  during  their  natural 
life.'" 

The  Master  has  decided  that  the  words  ''  during  their  natural 
life  **  are  to  be  inserted  by  construction  after  the  bequest  to  the 
Thompsons,  as  well  as  after  the  bequest  to  the  Gi^ys ;  and  that 
you  are  to  read  the  bequest  of  the  one-half  of  the  interest  to  the 
Thompsons  as  a  bequest  of  the  said  one-half  of  the  interest  to  them 
'*  during  their  natural  life ; "  and  that,  as  they  are  both  dead,  the 
residuary  legatee  must  be  entitled  until  the  principal  of  the  judg- 
ment is  payable,  t.  e.,  until  the  death  of  the  remaining  nephews  of 
the  testator,  Patrick  and  John  Ghray.  The  objection  to  that  con- 
struction is,  that  it  requires  the  insertion  of  words  in  the  clause 
contrary  to  the  principle  of  construction  decided  in  the  House  of 
Lords,  in  Gray  v.  Pears&n  (a). 

The  next  construction  which  may  be  put  on  the  clause  (which  is 
one  of  those  relied  on  by  the  appellant)  is,  that  if  you  do  not  insert 
the  words  "during  their  natural  life,"  which  the  Master  has,  by 
construction,  inserted  after  the  bequest  to  the  Thompsons,  there  was 
an  indefinite  bequest  of  the  one-half  of  the  interest  on  the  judgmeqt 
to  them,  until  the  principal  of  the  jud^ent  was  payable,  t.  e.,  until 
the  death  of  Patrick  and  John  Gray;  and  in  such  case  it  is  said,  on 
the  authority  of  Bignold  v.  GiUt  (6),  that  the  one-half  of  the  said 
interest  bequeathed  to  the  Thompsons  is  payable  to  Cecilia  Thomp- 
s<m,  as  the  personal  representative  of  Charies  Thompson,  who  sur- 
vived Meredith  Thompson,  during  the  lires  of  Patrick  and  John 
Gray. 

The  third  construction  which  the  clause  is  capable  of,  and  which 
has  been  also  relied  on  by  the  appellant's  Counsel,  is,  that  the  words 
at  the  end  of  the  clause  in  question,  "  during  their  natural  life," 
which,  of  course,  means  "  during  their  natural  lives  "  (the  sense  in 

(a)  6  H.  of  L.  Caa.  61.  (*)  4'Drew.  343. 


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212  CHANCERY  REPORTS. 

1861.  which  the  words  are  obviously  used  in  another  part  of  the  will), 
v^-v^-^  override  the  whole  of  the  clause ;  and  that  those  words,  according 
to  their  grammatical  and  natural  construction,  are  to  be  read  '^  during 
ROBINSON,  the  natural  lives  of  the  said  Meredith  Thompson,  Charles  Thomp- 
Judgment,  ^^  Patrick  Gray  and  John  Gray ; "  and  if  so,  that  the  effect  of  the 
clause  is  to  bequeath  one-half  of  the  interest  to  Meredith  Thompson 
and  Charles  Thompson,  daring  their  lives  and  the  lives  of  Patrick 
Gray  and  John  Gray ;  and  the  other  one-half  of  the  interest  to 
Patrick  Gray  and  John  Gray,  daring  their  lives,  and  daring  the 
lives  of  Meredith  Thompson  and  Charles  Thompson.  The  effect 
of  that  construction,  which  appears  to  be  the  most  natural  construc- 
tion of  the  language  of  the  clause,  is,  that  the  whole  of  the  interest 
of  the  judgment  was  disposed  of  until  the  principal  of  the  judgment 
became  payable  under  the  bequest  of  such  principal ;  and  it  is  not 
at  all  probable,  having  regard  to  the  grammatical  construction  of 
the  clause,  that  the  testator  intended  to  leave  a  portion  of  the  inter- 
est undisposed  of  before  the  principal  was  payable.  If  thia  be  the 
true  construction  of  the  clause,  which  I  think  it  is,  Cecilia  Thomp- 
son is  entitled  to  the  interest  which  she  claims.  If  the  construction 
which  I  have  secondly  stated  be  the  true  construction,  she  is 
equally  entitled*. 

I  have  not  beea  able,  after  a  careful  consideration  of  the  will,  to 
come  to  the  conclusion  which  the  Master  has,  that  you  are  to  insert 
the  words  *'  during  their  natural  life,"  after  the  bequest  to  the 
Thompsons,  which  leads  to  an  intestacy  as  to  part  of  the  interest ; 
and,  unless  you  insert  those  words,  the  Master  was  mistaken.  I 
think  the  best  way  is  to  insert  no  words,  but  to  construe  the 
words  as  they  stand  in  the  will ;  and  if  that  coarse  be  adopted,  in 
accordance  with  the  principle  laid  down  in  Grd^  v.  Pearson^  the 
construction  to  be  put  on  the  clause  is  that  either  secondly  or  thirdly 
before  stated ;  and  in  either  case  the  appellant  is  entitled.  I  shall 
delare  her  rights  accordingly. 


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CHANCERY  REPORTS.  213 


1860. 
RolU, 


WATSON  V.  FITZPATRICK. 


BROWNE  V.  FITZPATRICK. 


BROWNE  V.  COOTE. 


Nov.  20. 


This  was  a  motion  bj  way  of  appeal  from  an  order  of  Master  Ljle,  Whero  there 

made  in  these  matters.      The  order  and  the  nature  of  the  suits,  brances    prior 

80  far  as  they  are  material,  are  faUy  stated  in  his  Honor's  judgment  tionor'ha^ng 

The  question  on  the  motion  was  shortly  as  follows : — Certain  lands  of^tS^^Tis 

were  sold  in  the  second  matter.   Mary  Browne,  the  petitioner  in  ^^^  ^  ^ 

that  matter,  and  Elizabeth  Watson,  who  was  a  respondent  in  that  ^^  ^P  Pi^ 
'  *^  dnce  of  real 

matter,  and  petitioner  in  the  first  matter,  were  salvage  creditors  ^te,  in  the 
"^  "  7  -Ts  g^   instance, 

in  equal  priority.    The  Master,  in  allocating  the  funds,  directed  and  in  priori^ 

to  the  demands 

the  costs  of  Mary  Browne  to  be  paid  in  the  first  instance,  and  and  the  costs 

._  ,,..,,  ;«     «  *,         »*  ,   of  creditors  in 

the  residue  to  be  divided  rateably  between  Mary  Browne  and  eanal  priority 

Elizabeth  Watson.  '"*VT' 

Oonium(lJ>c. 
and  W.)  ob- 
Mr.  P.  W.  Walihy  on  behalf  of  Elizabeth  Watson,  moved  that  the  served  on. 

Master's  order  be  varied ;  and  that,  in  lieu  thereof,  the  sum  due      Argumau. 

to  Mary  Browne  for  principal,  interest  and  costs,  and  the  sum  due 

to  Elizabeth  Watson  for  principal,  interest  and  costs,  should  be 

paid  rateably.    He  contended  that  the  petitioner  was  only  entitled 

to  his  costs  according  to  his  priority,  on  the  authority  of  Taylor  v. 

Ocrman  (a) ;  Nelson  v.  Brady  (b) ;  Oray  v.  Crawford  (e) ;  Smyth 

▼.  Murphy  (d), 

Mr.  D.  Sherlock  and  Mr.  Beyiagh^  in  support  of  the  Master's 

(a)  1  Dr.  &  W.  235  a. 
(6)  2  Dr.  &  War.  143;  S.  C,  4  Jr.  £q.  Bep.  369. 
(c)  1  Jr.  £q.  Bep.  276.  (<0  10  Ir.  Chan.  Bep.  42. 


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214  CHANCBBY  B£PQBTS. 

1860.        order,  cited  Wright  v.  Keify  (a) ;  Wedgwood  v.  Adamt  (b) ;  Keify 
.J^     y.Kellgic). 

WATSON 
V. 

FiTzpATtacK.       ^j^^  Master  of  the  Rolls. 
Judgment.  xhe  petition  in  the  second  matter,  of  Browne  v.  Piizpairiek  and 

oihersy  was  filed  to  raise  the  amount  of  a  salvage  claim  due  to  the 
said  petitioner  in  respect  of  money  advanced  by  the  petitioner 
to  preserve  from  eviction  the  interest  in  certain  houses  in  Lower 
Mount-street  The  petition  was  referred  to  A.  Lyle,  Esq.,  the 
Master  in  the  cause,  under  the  15th  section  of  the  stat^te.  The 
petitions  in  the  other  matters  were  also  referred  to  the  Master, 
under  the  same  section.  By  a  decretal  order  made  in  the  second 
matter  of  Browne  v.  FUzpatrick  and  othert^  by  the  Master,  dated 
the  31st  of  December  1856,  it  was  declared  that  there  was  a  sum^f 
£105. 12s.  due  to  said  petitioner,  in  respect  of  such  salvage  advances, 
and  that  said  sum  and  interest  were  well  charged  on  the  estate 
of  the  respondents  John  Henry  Fitzpatrick  and  Maria  O'Farrell 
in  the  said  houses ;  and  it  was  thereby  further  ordered,  that  the 
said  sum  and  interest  should  be  paid  to  the  said  petitioner  within 
three  months,  or,  in  default  thereof,  that  the  interest  of  the  said 
respondents  in  the  said  houses  should  be  sold  for  the  payment 
of  the  petitioner's  demand,  and  the  costs  of  the  suit,  and  the 
demands  of  any  other  incumbrancers  as  should  come  in  and  prove 
their  demands;  and  the  said  petitioner  was  directed  to  insert 
advertisements  for  all  parties  having  charges  or  incumbrances 
to  come  in  and  prove  their  demands.  The  said  houses  were 
sold^  and  Elizabeth  Watson,  the  petitioner  in  the  first  matter, 
and  one  of  the  respondents  in  the  second  matter,  having  proved 
a  demand  in  the  second  matter,  of  Browne  v.  FUzpfUriek  and 
others^  in  respect  of  a  sum  paid  for  the  redemption  of  the  said 
houses,  the  Master,  by  an  order  made  in  the  said  second  matter, 
dated  the  31st  of  October  1869,  declared  that  the  said  Elizabeth 
Watson  was  entitled  to  the  sum  of  £215.  5s.  Id.,  in  respect  of 
the    sum  so  paid  for   redemption  ;  and  said  sum   was,  by  the 

(a)  23  Beay.  463.  (6)  8  Beav.  103. 

(c)  1  Ir.  £q.  Bep.  317. 


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CHANCERY  EEPOETS.  215 

said  order,  declared  a  charge  on  the  said  houses  and  premises,        1860. 

JtolU. 
together  with  interest ;  and  she  was  also  declared  entitled  to  the     ^«    y      ' 

WATSON 

costs  of  the  cause  petition  wherein  she,  the  said  Elizabeth  Watson,  v. 

was  petitioner,  and  the  said  John  Henry  Fitzpatrick  and  others         

were  respondents,  ''  along  with  her  said  demand  ;'*  and  Elizabeth      *'*''^"'^  • 

Watson  was  directed  by  the  said  order  to  make  it  up  at  her  own 

expense;  and  that  the  petitioner  Mary  Browne  should  have  her 

costs  of  opponng  the  charge  of  Elizabeth  Watson,  as  costs  in  the 

matter.    An  order  was  made,  entitled  in  the  first  matter,  of  EUza- 

betk  WaUan  v.  John  Henry  FUzpatriek  and  others^  and  in  the 

said  second  matter,  and  in  a  certain  sitipplemental  matter  of  Browne 

V.  Coote  and  others^  bearing  date  the  18th  of  April  1860,  whereby, 

after  directing  the  Accoontant^Greneral,  out  of  a  sum  of  £500 

standing  to  the  credit  of  the  second  and  third  matters,  to  draw 

in  favour  of  one  Denis  Hartley  for  £134.  4s.  6d.  (upon  which  part 

of  the  order  no  question  arises) ;  and  it  was  further  ordered  that  the 

Aocountant-General  should,  out  of  the  sum  of  £365.  158.  6d.  (the 

residue  of  the  said  sum  of  £500),  draw  on  the  Bank  of  Ireland, 

in  favour  of  the  solicitor  for  the  petitioner  Mary  Browne,  for  £232. 

17s.  Ud.  for  the  taxed  costs  of  Mary  Browne  in  the  three  matters, 

and  for  the  sunr  of  £69*  10s.  4d.,  the  certified  post  costs  of  the 

Bsdd  petitioner  Mary  Browne,  said  sums  making  together  £802. 

8s.  3d. ;  and  it  ^as  further  ordered,  that  the  Accountant-Grenend 

should  draw  on  the  Bank  of  Ireland  for  the  sum  of  £63.  7s.  3d. 

(being  the  residue  of  the  said  sum  of  £500),  in  favour  of  the  said 

Mary  Browne  and  Elizabeth  Watson,  rateably  In  proportion  to 

the  respective  amounts  of  principal  and  interest  due  to  the  peti- 

ti<mer  Mary  Browne,  and  principal,  interest  and  costs  due  to  the 

petitioner  Elizabeth  Watson;  that  is  to  say,  in  favour  of  Mary 

Browne  for  the  sum  of  £19*  Os.  7d.,  and  in  favour  of  the  petitioner 

Elizabeth  Watson  for  the  sum  of  £44.  6s.  8d.    The  Master  has 

not  expressly  found  the  priorities  of  the  said  Mary  Browne  and 

the  said  Elizabeth  Watson;  but  it  appears,  from  the  latter  part 

of  the  said  order  of  the  18th  of  April  1860,  that  it  was  assumed  they 

Atood  in  equal  priority,  as  the  residue,  after  payment  of  the  costs 

in  the  said  order  mentioned,  was  to  be  paid  proportionally  between 

them.     I  inquired  from  Counsel  on  what  ground  the  Master  held 


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216  CHANCERY  EEPOETS. 

I860.        that  the  two  demands  stood  in  equal  priority ;  and  I  was  informed 
RoUm. 
< , — ^     that,  in  consequence  of  some  facts  and  letters  not  brought  under 

WATSON 

«.  my  notice,  it  was  agreed  between  Counsel  on  each  side  that  the 

YITZPATBICK* 

demands  should  be  taken  to  be  in  equal  priority.    The  question, 

^^^*  therefore,  is,  whether,  as  the  two  incumbrances  are  to  be  considered 
as  of  equal  priority,  the  Master  was  right  in  holding  that  Mary 
Browne,  who  had  the  carriage  of  the  proceedings,  is  entitled  to  have 
her  costs  paid  out  of  the  fund  in  the  first  instance  ?  It  is  the  settled 
practice  of  the  Court,  that  a  plaintiff  or  petitioner  in  a  suit  for  the 
sale  of  real  estate  only  gets  the  costs  of  the  suit  in  the  same  priority 
with  his  demand,  except  such  costs  as  have  been  incurred  for  the 
benefit  of  the  parties  in  the  cause,  such,  for  example,  as  the 
making  out  of  title  to  real  estate  to  be  sold:  Peyton  v.  M^Der- 
moii  (a) ;  Nelton  v.  Brady  (&)•  I  have  inspected  the  Registrar's 
book  in  Taylor  v.  Gorman^  and  I  do  not  think  that  that  case  is 
correctly  reported.  I  have  not  been  referred  to  any  case  in  which 
the  question  hab  arisen  as  to  the  costs  of  the  suit,  where  the  plain- 
tiff orpetitioner  stands  in  equal  priority  with  another  incumbrancer. 
The  rule  established  in  Peyton  v.  3PDermoit  and  Nelson  v.  Brady 
was,  I  apprehend,  adopted  to  prevent  the  very  objectionable  practice 
of  filing  bills  on  the  part  of  a  puisne  incumbrancer,  for  the  sole 
purpose  of  realising  costs.  The  principle  of  allowing  a  petitioner 
under  the  Sheriffs  Act,  who  was  a  puisne  incumbrancer,  to  be 
paid  his  costs,  in  the  first  instance,  out  of  the  rents  received,  worked 
so  badly,  it  being  the  practice  for  Irish  usurers,  whose*  names 
are  so  well  known  in  this  Court,  to  purchase  up,  at  a  very  trifling 
sum,  puisne  judgments,  which  it  was  known  the  funds  would  never 
reach,  for  the  sole  purpose  of  realising  costs,  that  the  Legislature 
interfered,  the  matter  having  been,  with  other  notorious  abuses 
of  the  Court  of  Chancery  in  Ireland  then  existing,  brought  under 
the  notice  of  a  Committee  of  the  House  of  Commons.  I  believe 
that  the  object  of  establishing  the  rule  of  practice  in  causes, 
as  it  is  laid  down  in  Peyton  v.  M'Dermott  and  Nelson  v. 
Brady,  and  other  cases,  was  to  prevent  the  great  abuse  conse* 
quent  on  allowing  a  plaintiff  to  have  his  costs  in  the  first  instance, 

(a)  1  Br.  ft  Wal.  234.  (6)  2  Dr.  ft  War.  143. 


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CHANCERY  REPORTS.  ^      217 

although  he  knew  the  funds  could  not   reach  him.      That  prin-         I860. 

RolU. 
ciple,  however,  is  not  applicable  where  two  incumbrancers  stand     ^- — .^— ^ 

WATBOM 

in  equal  priority,  and  one  of  them  files  a  bill,  or  a  cause  petition,  v. 

FITSPATBXOK. 

for  the  sale  of  the  real  estate,  the  produce  of  which  is  to  be         

applied  to  pay  the  demands  of  both  incumbrancers.  In  the  absence  Judgment. 
of  any  decision  on  the  subject,  I  should  not  feel  justified  in  revers- 
ing Master  Lyle's  decision  on  a  doubtful  question.  There  being  no 
rule  of  practice  on  the  subject,  I  apprehend  the  Master  was  entitled  to 
exercise  his  discretion  as  to  the  costs ;  and,  if  he  h^d  any  discretion, 
the  appellant  has  no  right  to  appeal  from  a  decision  as  to  costs. 

In  the  absence  of  any  established  practice  in  the  Court  of  Chancery, 
as  to  the  priority  of  the  costs  of  the  suit,  where  a  plaintiff  or  peti- 
tioner in  a  suit  for  the  sale  of  real  estate,  or  for  the  appointment 
of  a  receiver,  stands  in  equal  priority  with  another  incumbrancer,  I 
thought  it  right  to  apply  to  Mr.  Carey,  Secretary  of  the  Landed 
Estates  Court,  as  to  the  practice  in  that  Court ;  and  he  has  been  so 
good  as  to  send  me  the  following  statement  in  writing: — ^''The 
practice  observed  by  the  Judges  of  the  Latided  Estates  Court,  with 
reference  to  the  costs  of  proceedings,  is,  to  allow  such  costs  in  the 
tame  priority  as  the  petitioner's  demand,  except  in  cases  where, 
under  the  circumstances,  the  Judge  makes  an  order  specially  de- 
claring the  petitioner  entitled  to  his  costs  in  any  earlier  priority. 
In  cases  of  incumbrances  of  equal  priority,  the  Court  would  allow 
the  costs  of  the  petitioner  (being  one  of  such  incumbrancers),  in 
IMiority  to  both.  I  have  mentioned  the  subject  to  Judge  Longfield, 
and  he  says  that  he  recollects  having  had  occasion  to  consider  the 
question;  and  he  found  that  the  above  course  was  consistent  with 
the  terms  of  some  Chancery  decrees;  but  he  ornnot  now  parti- 
eularly  refer  to  them.** 

I  am  not  aware  of  the  Chancery  decrees  referred  to  by  Judge 
Longfield ;  but  I  concur  in  the  view  adopted  by  the  Landed  Estatea 
Court  and  by  Master  Lyle ;  and,  at  all  events,  I  do  not  feel  justified 
in  reversing  Master  Lyle's  order  on  a  question  of  costs,  unless  there 
was  a  clear  rule  of  practice  at  variance  with  his  decision.  I  am, 
therefore,  of  opinion  that  the  motion  must  be  refused,  but  without 
costs.  A  question  might,  perhaps,  have  been  raised,  upon  which 
VOL.  11.  28 


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218  CHANCERY  REPORTS. 

1860.       I  offer  no  opinicHi,  as  it  has  not  been  argued,  that  Elizabeth  Watson 
JRoUs, 
y. — . '     should  (as  well  as  Mary  Browne)  have  been  paid  her  costs  out  of  the 

p.  fund  before  the  balance  was  rateablj  distributed. 

rZTZPATKICK. 

Judgmmt. 


i^«y30.  GRAY  V.  GRAY. 

June  2. 
Abo.  3. 

A  testator  be-  This  was  a  suit  for  the  administration  of  the  estate  of  John  Gray* 
qneathedtohis  ^ 

two  sons  all     The  principal  question  in  the  case  was,  whether  a  trust  was  created 

real  and '^r-  ^7  ^^^  "^^y  ^^  favour  of  his  children,  and  which  of  them?     Master 

i^d  to  hold  the  ^i^>o^^  ^  whom  the  matter  was  referred,  under  the  15th  section  of 

SSt  ^ute  ^®  ^^^^  ^^  Chancery  (Ireland)    Regulation  Act  1860,  by  his 

P^^^l^^^^.  decretal  order,  declared  that,  having  regard  to  the  statements  in 

to  be  his  will  the  petition  respecting  the  testator's  intention,  and  to  the  expres- 

ihat  his  sons  sions  in  the  will,  a  trust  had  been  created  in  favour  of  the  child- 
should,  at  their 

discretion,  and  ren  other  than  the  two  sons,  the  devisees.      The  petitioner,  one 
according  to 

their  own       of  the  sons,  appealed  from  that- declaration. 
Jadgmenty 
allocate  to  the 

of  Ids^^i^ily,       ^^*  Brewster  and  Mr.  Latalets,  for  the  petitioner,  contended  that 

^U^lwottS  ^^  *""*  ^^  created  by  the  will.    The  direction  of  the  testator  was 

^OTd^  f^  neither  imperative  nor  precatory :    Wood  v.  Cox  (a) ;  the  subject 

Mid  F^®^  of  the  alleged  trust  was  uncertain,  and  the  objects  of  it  were  unoer* 

the  same  more  tain:  WiUianu  v.  Williams (b)  ;    Webb  v.  Wools  (e)  ;    Knioht  v. 

or  ^fff^,  as  to 

them  shoold    Knight  (d)  -,  Wheeler  v.  Smith  (e) ;   Biggs  v.  Ward  (f) ;   Meredith 

•eem  fit  and 

soitable;  and    ▼•  Heneage(g);    SugdefCs  Law  of  Property ^  p.  389;  Pinekard^s 

he  appointed 

his  said   sons 

his  ezecotora. — HeJd^  coupling  the  will  with  an  admission  in  the  petition  by  the 

aons,  of  the  testator's  intention,  that  a  trost  had  been  created,  and  that  the  sons  were 

trostees  for  the  other  children  of  the  testator  as  to  the  entire  property  of  the  testator, 

both  real  and  peiKmaL 

Ca)  2  M.  &  C.  648.  (6)  1  Sim.,  N.  8.,  S5S. 

(e)  2  Sim.,  N.  S.,  267.  (<0  3  Beay.  14a 

(«)  6  Jar.,  N.  S.,  62.  (fj  I  Hare,  445. 

(S)  1  Sim.  556. 


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CHANCERY  REPORTS. 


219 


Trust  (a)  ;  M^Auley  y.  Clarendon  {b).  The  trust  was  at  most  a  par- 
tial one,  as  to  such  sum  as  the  sons,  in  their  discretion,  should  choose, 
and  as  to  the  residue  the  sons  were  beneficially  interested :  Wood  v. 
Cox  (e) ;  Dawson  v.  Clarke  (d), 

Mr.  W,  Bourke  and  Mr.  FP.  R,  C  Smithy  for  one  of  the  daugh- 
ters of  the  testator,  contended  that  there  was  a  trust  on  the  face 
of  the  will  itself ;  but  if  the  trust  did  not  sufficiently  appear  on  the 
face  of  the  will  itself,  it  was  plain,  by  coupling  it  with  the  state- 
ment in  the  petition,  by  which  it  appeared  that  the  sons  were  to 
hold  on  a  secret  trust :  Russell  y,  Jackson  (e) ;  Briggs  v.  Penny  (f) ; 
Walgrave  v.  Tebbs  {g) ;  Bernard  v.  MinshtUl  (h). 

Mr.  Lloyd  and  Mr.  Coffey^  for  Moses  Wilson  Gray,  one  of  the 
trustees,  declined  to  take  any  part  of  the  property  to  himself^  or  to 
take  any  part  in  the  discussion,  as  he  considered  that  his  father 
intended  to  create  a  trust. 

Mr.  G,  O.  Malley^  for  Alexander  Gray,  another  son. 


1860. 

RolU. 

y — -, » 

GRAY 

V. 
OBAT. 

ArgvmeiU. 


The  Mastbb  of  the  Rolls. 

In  this  case  a  motion  has  been  made,  on  the  part  of  the  petitioner 
John  Gray,  by  way  of  appeal  from  the  decretal  order  of  William 
Brooke,  Esq.,  the  Master  in  this  matter,  signed  the  27th  of  April 
I860.  The  appeal  is  from  the  portion  of  the  decretal  order  which 
is  in  these  words  :^—*' Having  regard  to  the  statements  in  the  peti- 
tion in  this  matter  set  forth,  respecting  the  said  testator's  intentions, 
and  also  to  the  expressions  of  the  will  itself,  declare  that  a  trust 
has  been  created,  of  which  the  trustees  are  the  said  petitioner  John 
Gray  and  his  brother  Moses  Wilson  Gray,  and  the  objects  of  the 
trusts  are  the  other  children  of  the  said  testator,  and  the  subject- 


(a)  4Jiir.,K.S.,  1041. 
(c)  2M.&Cr.684. 
(e)  10  Hare,  204. 
(p)  2  Jar.,  N.  8.,  83. 


(6)  8  It.  Chan.  Bep.  121,  568. 
(d)  18Veg.254. 
r/)3M»N.&G,54a 
(A)  I  JohBft.  276. 


Nov.  9, 
Judgment. 


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220  CHANCERY  REPORTS- 

I860.        matter  the  entire  property  of  the  said  testator,  both  real  and  per- 

Roth. 

sonal. 


It  is  sought,  by  the  notice  of  motion,  to  set  aside  such  declaration, 
**  and  that  it  may  be  declared  that  the  petitioner  and  the  respondent 
j^jTjJj^^  Moses  Wilson  Gray  take  the  properties  devised  to  them  by  the 
testator's  will,  unaffected  by  any  trust,  but  with  an  absolute  discre- 
tion and  power  in  them  to  make  such  provision  for  the  testator's 
children  as  they  should  think  proper ;  or,  if  the  Court  shall  be  of 
opinion  that  a  trust  was  created,  that  it  may  be  declared  that  all  the 
children  of  the  testator,  including  the  petitioner  and  the  respondent 
Moses  Wilson  Gray,  are  entitled  to  the  benefit  thereof;  and  that  the 
said  order  may  be  reversed  and  varied  accordingly." 

The  will  of  the  testator  is  short,  and  is  in  these  words : — '*  I,  John 
Gray,  of  Claremorris,  in  the  county  of  Mayo,  being  infirm  of  body, 
but  of  sound  mind  and  judgment,  do  hereby  will  and  bequeath  unto 
my  sons,  Meses  Wilson  Gray,  Esq.,  Barrister-at-law,  and  John 
Gray,  Esq.,  M.D.,  of  Dublin,  all  the  property,  real,  personal  or 
otherwise,  and  all  the  stock  and  furniture,  and  every  the  goods  and 
chattels,  of  whatever  nature  and  kind  soever,  of  which  I  may  be 
seised  and  possessed  at  the  time  of  my  decease,  to  have  and  to  hold 
the  same  in  the  most  absolute  manner ;  and  I  further  will  and  hereby 
declare  it  to  be  my  intention  that  the  said  Moses  Wilson  Gray  and 
John  Gray  shall,  at  their  discretion  and  according  to  their  own 
judgment,  allocate  to  the  other  members  of  my  family,  being  my 
lawfully  begotten  children,  such  portions  of  the  said  property  and 
goods,  be  the  same  more  or  less,  as  to  them  the  said  Moses  Wilson 
Gray  and  John  Gray  shall  seem  fit  and  suitable;  and  I  hereby 
appoint  and  nominate  the  said  Moses  Wilson  Gray  and  the  said 
John  Gray  as  my  executors;  and  I  hereby  make  and  publish  this 
as  my  last  will  and  testament,  affixing  thereto  my  hand  and  seal, 
the  27th  of  July  1652."  The  will  was  duly  signed  and  attested, 
and  probate  thereof  was  granted  to  the  petitioner  John  Gray,  saving 
the  right  of  -the  other  executor,  Moses  Wilson  Gray.  The  testator 
died  in  1866,  and  the  petitioner  took  the  opinion  of  Mr.  Deasy, 
now  the  Atiomey''General^  shortly  after,  and  the  respondent 
took    the   opinion  of  Mr.  Brewster  in   1859.      The  opinion    of 


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<3HANCERY  REPORTS. 


221 


those  gentlemen  was  unfavonrable  to  the  petitioner,  although  they 
considered  the  question  as  one  of  great  difficulty.  I  should  be  very 
slow  to  come  to  a  conclusion  at  variance  with  the  concurrent  opinions 
of  the  Master,  the  AUomey^  General  and  Mr.  Brewster  ;  but  I  must 
say  that  I  concur  substantially  in  their  opinion. 

The  petitioner,  in  the  petition,  states,  '*  That  immediately  after 
the  interment  of  the  testator,  the  petitioner  caused  his  solicitor  to 
prepare  a  case,  to  lay  same  before  Counsel,  for  his  advice  and 
directions  respecting  said  will  and  affairs ;  and  said  case,  to  which, 
to  avoid  prolixity,  petitioner  begs  leave  to  refer,  stated  as  accurately 
and  fully  as  petitioner's  knowledge  of  said  affairs  enabled  him  to 
instruct  said  solicitor,  all  the  facts  and  circumstances  connected 
therewith,  with  which  he  was  acquainted ;  and  also  his  views  as  to 
the  manner  and  mode  in  which  the  trusts  of  said  will  should  be 
executed,  according  to  what  petitioner  understood  and  believed  to 
be  the  wishes  and  intentions  of  the  testator,  more  espeoiaUy  with 
respect  to  testator's  son  George  Gray."  The  petitioner,  at  the  time 
of  verifying  the  petition,  indorsed  the  case  and  opinion,  which  was, 
in  effect,  by  reference  incorporated  therewith;  and  the  petition 
prays,  amongst  other  things,  that  the  *'  trusts  of  the  will  may  be 
carried  into  execution." 

The  ease  referred  to  by  the  petitioner  in  the  petition,  and  incor- 
porated by  reference  therewith,  states,  amongst  other  things,  that, 
^'In  the  month  of  July  1852,  the  testator  was  seized,  and  for  some 
time  confined,  by  a  serious  and  an  alarming  illness.  During  this 
illness,  and  at  a  period  when  he  was  considered  to  be  on  the  verge 
of  death,  he  was  visited  by  one  of  his  sons.  Dr.  Gray,  of  Dublin 
(the  petitioner),  to  whom  he  expressed  his  concern  at  not  having, 
up  to  that  time,  made  any  will  or  settlement  of  his  affairs.  After 
some  conversation  on  the  subject,  and  speaking  at  once  fully  but 
generally  as  to  how  he  would  wish  his  property  to  be  distributed 
amongst  bis  children,  he  directed  Dr.  Gray  to  draw  his  will,  devis- 
ing and  bequeathing  all  his  property,  of  every  kind  whatsoever,  to 
Mr.  Wilson  Gray  (another  of  his  sons),  and  Dr.  Gray.  It  so  hap- 
pened that  Mr.  Wilson  Gray,  in  whom  testator  placed  great  confi- 
dence, was  not,  at  the  time,  in  Claremorris,  or  within  reach  of  being 


1860. 
RoJh, 


Judgment* 


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1860. 
Rolis. 

^ V ' 

ORAT 

r. 

ORAT. 

Judgment* 


consulted ;  but  he  afterwards  became  fully  acquainted  with  same, 
and  it  is  believed  was  the  custodee  of  it  for  some  time.  This 
devise  he,  testator,  wished  and  directed  to  be  absolute  in  its  terms, 
so  as  to  vest  in  Mr.  Wilson  Gray  and  Dr.  Gray  uncontrollable  dis- 
cretion in  the  disposition  and  distribution  of  his  property,  trusting, 
however,  to  their  probity,  that  they  would  dispose  of  it  in  consonance 
with  what  they  knew  to  be  his  views  and  wishes  in  that  respect. 
These  views  and  these  wishes  he  not  only  then,  but  after  his 
recovery  from  that  illness,  expressed,  and  they  may  be  thus  con- 
veyed:— And,  first,  as  to  the  female  portion  of  his  family.  He 
considered,  as  indeed  the  fact  was,  that  he  had  more  than  provided 
for  his  daughter  Mrs.  Margaret  M'Cullagh,  and  that  his  other  two 
daughters  should  get  about  £500  each,  which  contemplated,  in  the 
case  of  his  daughter  Mrs.  Rutledge,  a  sum  of  £200  in  addition  to 
the  £300  given  to  her  on  her  marriage.  As  to  his  sons,  he  intended 
that  there  should  be  Secured  for  his  eldest  son  George  a  life  provi- 
sion, to  be  so  guarded  as  to  deprive  him  of  all  power  of  either 
disposing  of  it  or  incumbering  it — a  restriction  absolutely  necessary 
for  the  protection  of  the  said  George,  who  is  of  such  character  and 
habits  as  to  render  some  such  restriction  necessary  for  his  own  per- 
sonal security.  He  was  also  understood  to  desire  that  the  two  sons 
in  America,  and  his  son  Joseph,  should  get  about  £200  a-piece ;  but 
it  is  to  be  observed  that  this  last-named  son,  being  rather  of  a  wild 
and  improvident  turn,  the  testator  was  very  anxious  that  great 
caution  and  circumspection  should  be  used  in  his  instance.  In  truth* 
it  was  perplexity  as  to  how  his  wildness,  and  the  weakness  of 
Greorge,  could  be  dealt  with,  that  had  prevented  the  testator  from 
settling  the  details  of  his  a£fairs,  and  that  induced  him  to  prefer  the 
mode  of  placing  the  matter  within  the  power,  and,  in  the  hands,  of 
his  two  sons  Mr.  Wilson  Gray  and  petitioner,  in  both  of  whom  he 
placed  implicit  reliance.  With  respect  to  any  surplus,  it  was  to  go 
equally  between  Mr.  Wilson  Gray  and  petitioner ;  but  it  is  very 
doubtful  if  there  will  be  any  surplus,  and  quite  certain  that,  in  anj 
event,  it  will  be  very  trifling.  As  already  mentioned,  the  testator 
recovered  from  the  illness  in  the  course  of  which  he  had  made  said 
will ;  and  although  the  will  itself  remained  in  his  hands,  from  itm 


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date  ap  to  his  death,  he  made  no  alteration  or  change ;  and  the  fol«   ' 
lowing  indorsement,  in  testator's  handwritings  appears  on  it,  viz., 
*  The  last  will  and  testament  of  John  Gray.' " 

The  case  then  states  the  mode  in  which  the  petitioner  proposed 
that  the  property  of  the  testator  should  be  distributed,  under  five 
heads,  which  would  include  an  annuity  of  £60  a-year  for  one  son, 
and  sums  amounting  to  £1300  or  £1400,  for  other  children ;  and  as 
to  the  surplus,  the  words  of  the  case  are,  **  Sixthly ;  the  surplus,  if  any ^ 
in  equal  shares  to  Mr.  Wilson  Gray  and  Dr.  Gray,''   the  petitioner. 

Mr.  Dtaay  stated  his  opinion  at  length  to  the  several  queries ; 
and  although  he  expressed  a  doubt  on  the  question  which  now  arises, 
his  opinion  was  unfavourable  to  the  claim  now  made  by  Dr.  Gray, 
Mr.  Deasy  considering  that  Mr.  Moses  Wilson  Gray  and  the  peti- 
tioner took  the  property  subject  to  a  trust  for  distribution  amongst 
the  other  members  of  the  family.  If  the  construction  sought  to  be 
put  on  the  will  by  the  petitioner  be  well  founded,  he  and  Mr.  Wil* 
son  Gray,  his  co-trustee,  have  an  interest  directly  opposed  to  their 
duty.  If  they  have  an  unrestricted  power  to  appropriate  any  sums, 
however  small,  between  the  other  children,  and  that  they  are  enti- 
tled to  the  surplus,  the  effect  would  be,  that  the  trustees  might  take 
a  surplus  consisting  of  the  principal  part  of  the  property. 

Mr.  Lloyd  appeared  for  the  co-trustee,  and  makes  no  claim,  con- 
sidering that  he  and  the  petitioner  held  the  property  on  trust  for 
the  other  members  of  the  family. 

The  first  question  is,  whether  any  trust  appears  on  the  face  of 
the  will  itself?  It  is  contended,  on  the  part  of  the  petitioner,  that 
the  devise  being  to  the  petitioner  and  his  co-trustee  **  in  the  most 
absolute  manner,"  there  was  no  trust.  I  think  that  argument  is 
met  by  the  case  of  Bernard  v.  Minshull  (a) ;  in  which  a  devise  to  a 
person  *' absolutely"  did  not  prevent  his  being  considered  a  trustee, 
and  excluded  from  any  share  of  the  property  affected  by  the  trust 
It  is  not,  however,  necessary,  as  it  appears  to  me,  to  decide  whether 
there  was  a  trust  on  the  face  of  the  will,  as  the  facts  stated  in  the 
case  laid  before  Counsel,  which  was  drawn,  up  under  the  directions 
of  the  petitioner,  and  which  case  the   petitioner   incorporates  by 

(a)  I  Johnf.  276. 


1860. 
RolU. 


Judgmtnt. 


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224  CHANCERY  REPORTS. 

I860.  reference  in  the  petiticHi,  establishes  that  there  was  a  trust;  and  the 
trust  is,  in  my  opinion,  binding  on  the  petitioner  and  his  co-trustee. 
The  co-trustee  admits  that  it  is  binding.  ^'  If  an  estate  is  suffered 
to  descend,  the  owner  being  informed  bj  the  heir  that,  if  the  estate 
Judgment^  is  permitted  to  descend,  he  will  make  a  provision  for  the  mother, 
wife,  or  any  other  person,  there  is  no  doubt  Equity  would  compel 
the  heir  to  discover  whether  he  did  make  such  promise.  So,  if  a 
father  devises  to  the  youngest  son,  who  promises  that,  if  the  estate  is 
.  devised  to  him,  he  will  pay  £10,000  to  the  eldest  son,  Equity  would 
compel  the  former  to  discover  whether  that  passed  in  parol ;  and  if 
'  he  acknowledged  it,  even  praying  the  benefit  of  the  statute,  he 
would  be  a  trustee  to  the  value  of  the  £10,000."  That  was  laid 
down  by  Lord  Eldon,  in  Strickland  v.  Aldridge{a),  Mr.  Jar- 
man^  in  his  Treatise  on  Wills^  2nd  ed.,  vol.  1,  p.  343,  states, 
'*  And  it  is  clear  that,  in  such  a  case,  if  the  trust  were  denied  by 
the  heir  or  devisee,  it  might  be  proved  aliunde^ 

In  Lewen  on  Trusts,  3rd  ed.,  p.  70,  it  is  laid  down,  after  refer- 
ring to  Strickland  v.  Aldridge  : — ''  And  so  generally,  if  a  testator 
devises  an  estate  to  A,  the  beneficial  owner  on  the  face  of  the  will, 
but  upon  the  understanding  between  the  testator  and  A  that  the 
devisee  will,  as  to  a  part,  or  even  the  entirety  of  the  beneficial 
interest,  hold  upon  any  trust  which  is  lawful  in  itself,  in  favour  of 
B,  the  Court,  at  the  instance  of  B,  will  affect  the  conscience  of  A, 
and  decree  him  to  execute  the  testator's  intention."  Many  of  the 
authorities  in  support  of  this  proposition  are  referred  to  by  Mr. 
Lewen  ;  and  it  is  not  necessary  to  go  through  them,  as  I  apprehend 
there  is  no  doubt  on  the  subject.  The  last  case  in  which,  I  believe, 
the  law  is  so  laid  down  is  Russell  v.  Jackson  {b).  If  this  be  so,  I 
cannot  understand  how  it  can  be  contended  that  there  was  no  under- 
standing between  the  testator  and  the  petitioner,  or  that  he  and  hia 
co-trustee  could,  consistently  witH  what  is  stated  in  the  caaie  drawn 
np  for  Counsel  under  the  petitioner's  directions,  hold  the  property 
discharged  of  any  trust.  I  am,  therefore,  of  opinion  that  the  first 
question  raised  by  the  notice  of  appeal,  that  the  petitioner  and  his 
oo-trustee  take  the  property  unaffected  by  any  trust,  is  unsostain- 

(a)  9  Ves.  519.  (6)  10  Hare,  212. 


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able.     It  18  to  be  observed  that  the  petition  prays  that  the  trusts  of 
the  will  may  be  carried  into  execution. 

The  second  question  raised  by  the  notice  of  appeal  is  that,  if 
there  was  a  trust,  all  the  children  of  the  testator,  including  the 
petitioner  and  the  respondent,  Moses  Wilson  Gray,  are  entitled  to 
the  benefit  thereof.  Now  the  notice  of  appeal  does  not  define  what 
the  extent  of  the  claim  of  the  petitioner  is.  His  co-trustee  would 
noty  as  I  understand,  consent  to  any  allocation  of  the  property, 
except  in  accordance  with  the  declared  intentions  of  the  testator ; 
and,  if  not,  how  is  the  property  to  be  divided  ?  If  it  was  divided  in 
equal  shares  between  all  the  children,  including  the  petitioner  and 
his  co-trustee,  this  would,  I  apprehend,  be  at  variance  with  the 
understanding  which  existed  between  the  petitioner  and  the  testator, 
as  set  out  in  the  case.  The  case  states  that,  "  with  respect  to  any 
surplus,  it  was  to  go  equally  between  Mr.  Wilson  and  Dr.  Gray 
(the  petitioner) ;  but  it  is  very  doubtful  whether  there  will  be  any 
surplus,  and  quite  certain  that  in  any  event  it  will  be  very  trifling;*' 
t.  ^.,  that,  after  carrying  out  the  intentions  of  the  testator,  which,  I 
think,  it  is  plain  there  was  an  understanding  should  be  carried  out, 
if  the  property  was  devised  to  Mr.  Wilson  Gray  and  the  petitioner, 
it  was  doubtful  whether  there  would  be  any  surplus,  and,  if  any, 
that  it  would  be  very  trifling.  If  so,  the  division  of  the  property 
between  all  the  children,  including  the  petitioner  and  his  co-trus- 
tee, would  be  directly  at  variance  with,  the  intention  of  the  testator, 
as  stated  in  the  case.  If  the  petitioner  had  sought  that  the 
Court  should  carry  into  eflect  what  the  petitioner  considered  to 
be  the  understanding  which  existed  between  him  and  lib  father, 
I  could  understand  the  petitioner  alleging  that  there  would  be  a 
surplus  divisible  between  him  and  Moses'  Wilson  Gray ;  but  that 
is  not  the  case  made  by  the  notice  of  appeal,  or  during  the  argu- 
ment. The  case  made  by  the  notice  of  appeal,  and  during  the 
argument,  was,  '*  that  tbe  petitioner  and  the  respondent,  Moses  Wil- 
son Gray,  take  the  proportions  devised  to  them  by  the  testator's 
will,  unafiected  by  any  trust,  but  with  an  absolute  discretion  and 
power  in  them  to  make  such  provision  for  the  testator's  children  as 
they  should  think  proper  ; "  but  that,  if  there  was  a  trust,  **  all  the 
\         VOL.  II.  ,  29 


1860. 
RolU. 


Judgment. 


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1860. 
RoUs. 


Mgfuetu. 


children  of  the  testator,  including  the  petitioner  and  the  respondent, 
Moses  Wilson  Gray,  are  entitled  to  the  benefit  thereof;  **  that  is, 
that,  although  there  should  be  no  surplus  after  carrying  out  the 
understanding  between  the  testator  and  the  petitioner,  the  petitioner 
was  to  take  an  equal  share  of  the  property  with  the  other  children. 
A  decision  to  that  effect  would  not  carry  into  effect  the  trust,  but 
would  be  opposed  to  it.  There  is,  however,  a  legal  difficulty  in  the 
way  of  the  petitioner  claiming  half  of  the  surplus,  or  any  portion  of 
the  testator's  property.  In  Brigg$  y.  Penny  (a),  Lord  Truro  laid 
down  as  follows: — *'It  is  most  important  to  observe  that  vagueness 
in  the  object  will  unquestionably  furnish  reason  for  holding  that  no 
trust  was  intended ;  yet  this  may  be  countervailed  by  other  consider- 
ations which  show  that  a  trust  was  intended,  while,  at  the  same 
time,  such  trust  is  not  sufficiently  certain  and  definite  to  be  valid 
and  effectual ;  and  it  is  not  necessary,  to  exclude  the  legatee  from  a 
beneficial  interest,  that  there  should  be  a  valid  or  effectual  trust ; 
it  is  only  necessary  that  it  should  clearly  appear  that  a  trust  was 
intended.  Now  this  is  precisely  the  case  with  the  present  bequest.  I 
agree  with  the  Yice-Chancellor  in  interpreting  ^  views  and  wishes ' 
to  mean  *  designs  and  desires ;  *  and  the  very  expression  of  confi- 
dence that  Miss  Penny  would  make  a  good  use  and  dispose  of  the 
property  in  a  manner  in  accordance  with  the  testatrix'  designs  and 
desires  or  intentions  appears  to  me  to  amount  to  a  declaration  that 
Miss  Penny  was  to  hold  the  property  for  that  purpose ;  or,  in  other 
words  to  the  same  import,  upon  trust.  It  seems  to  me  to  be  tanta- 
mount to  a  bequest  upon  trust;  and  if  so,  that  is  sufficient  to 
exclude  Miss  Penny  firom  taking  the  beneficial  interest.  Such  views 
and  wishes  may.  be  left  unexplained — such  trust  be  left  undeclared  ; 
but  still,  in  such  case,  it  is  clear  a  trust  wad  intended ;  and  that  is 
sufficient  to  exclude  the  legatee  from  a  beneficial  interest.  Once 
establish  that  a  trust  was  intended,  and  the  legatee  cannot  take 
beneficially.  If  a  testator  gives  upon  trust,  though  he  never  adds  a 
syllable  to  denote  the  objects  of  that  trust,  or  though  he  declares  the 
trust  in  such  a  way  as  not  to  exhaust  the  property,  or  though  he 
declares  it  imperfectly,  or  though  the  trusts  are  illegal,  still,  in  all 

(a)  3  M.  &  G.  556,  557. 


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these  cases,  as  is  well  known,  the  legatee  is  excluded,  and  the  next- 
of-kin  take.  Bat  there  is  no  peculiar  effect  in  the  word  *  trust ; ' 
other  expressions  may  be  equally  indicative  of  a  fiduciary  interest, 
though  not  equally  apt  or  clear.**  In  Russell  v.  Jackson  (a),  the 
Vice-chancellor  stated : — **  It  is  clear  that  the  devise  was  made  to 
these  defendants  for  the  purpose  of  holding  it  upon  trust ;  and,  being 
held  by  them  upon  trust,  the  result,  as  I  conceive,  is,  that  they 
cannot  take  beneficially,  in  any  view  of  the  case."  Of  course,  if  a 
testator  shows  an  intention  that  a  trustee  should  take  beneficially,  he 
may  do  so ;  but,  in  the  absence  of  such  intention,  a  devise  on  trust 
excludes  the  trustee  from  claiming  to  take  beneficially.  In  the  case 
of  Bernard  v.  MinshuU  (6),  Vice-chancellor  Wood  says : — ••  Sup- 
pose that,  by  the  precatory  words  in  a  will,  the  donee  is  requested 
to  apply  property,    the  amount  of  which  is  ascertained^  *for  the 

benefit  of ,*  or  ^  for  the  benefit  of  the  person  I  have  named   in 

a  paper  that  will  be  found  in  such  a  drawer,'  and  there  is  no  such 
paper  found,  in  either  case  there  would  be  uncertainty  enough  as  to 
the  object ;  and  yet  such  a  trust  would  be  created  as  would  effectu- 
ally exclude  the  donee  from  applying  the  property  tO'  his  own  use." 
Dawson  v.  Clarke  (c)  was  referred  to  by  the  petitioner's  Counsel; 
but  that  case  has  been  overruled,  as  also  the  decision  of  Vice-Chan- 
cellor  Bruce,  in  -Russell  v.  Clowes^  and  of  the  Vice-Chancellor  of 
England,  in  Mapp  v.  Eleoek.  The  cases  on  the  point  decided  in 
Dawson  v.  Clarke  are  collected  in  Read  v.  Steadman(d),  which 
is  an  important  case  on  this  subject.  Assuming,  however,  that  the 
Court  could  not  in  general  carry  into  execution  a  trust  where  so 
complete  a  discretion  was  vested  in  the  trustees  as  in  the  present 
case,  as  to  the  mode  of  distribution,  yet  in  such  case  the  Court,  in 
the  event  of  the  trustees  not  concurring  in  the  exercise  of  the  dis- 
cretion vested  in  them,  would  divide  the  fund  between  the  other 
children  who  were  objects  of  the  trust.  The  petition  does  not 
make  the  case  that  there  was  an  intestacy  as  to  the  beneficial 
interest  in  the  property  devised  on  trust  to  the  petitioner  and 
Moses  Wilson  Gray,  and  that  the  petitioner  is  entitled,  as  one 


1860. 

Rolls. 


Judgment* 


(a)  10  Hare,  214. 
(c)  15  Ves.  409. 


(A)  1  John.  286,  287. 
(<0  26  Bear.  500. 


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CHANCERY  REPORTS. 


1860. 
RoUs. 


Judgment, 


of  the  next-of-kin,  to  an  equal  share.     The  petition  prays  that 
the  trusts  of  the  will  may  be  carried  into  execution.     If  the 
petitioner  had  by  his  petition  contended  that,  in  the  event  of  the 
discretionary  power  not  being  exercised  by  the  petitioner  and  his 
co-trustee,  there  would  be'  an  intestacy,  the  answer  to  such  a 
case  would  have  been  that,  although  where  a  discretionary  power 
is  given  to  trustees,  the  Court  has  in  general  no  jurisdiction  to 
control  them  in  the  exercise  of  that  discretion,   provided  their 
conduct  be  bona  fide^  and  not  influenced  by  improper    motives, 
yet  the  Court  will  interfere  where  the  discretion  of  the  trustees 
is  infected  by  misbehaviour,  or  they  decline  to  undertake  the  duty 
of  exercising  their  discretion.    The  cases  on  this  subject  are  very 
numerous,  and  are  collected  in  Mr.  Lewin*$  treatise  on  the  Law 
of  Trusts^  3rd  ed.,  pp.  638  and  643. 

If  the  petitioner  was  to  contend  that  the  non-exercise  of  the  dis- 
cretion vested  in  the  trustees  in  this  case  was  to  create  an  intestacy 
as  to  the  beneficial  and  equitable  interest  in  the  property  of  which  the 
legal  title  was  vested  in  them,  I  apprehend  that  a  Court  of  Equity 
would  not  permit  the  petitioner  to  derive  a  benefit  to  arise  from  his  not 
executing  the  trust  reposed  in  him  in  conjunction  with  his  co-trus- 
tee, and  would  not  allow  hin>  to  claim  as  one  of  the  next-of-kin, 
on  ai^  intestacy  arising  out  of  his  own  act.  I  think,  therefore, 
the  Master  was  justified  in  holding  that  the  other  children  of  the 
testator  (exclusive  of  the  trustees)  are  entitled  to  the  entire  pro- 
perty, the  trusts  not  having  been  exercised.  I  sent  in  the  order, 
shortly  after  'the  Court  rose  last  Term,  refusing  the  motion ;  but 
I  hav^  thought  that  the  parties  might  wish  to  know  the  grounds 
of  my  decision. 


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1861. 
£.  £.  Court, 


JLHtirftri   Htf^tntti^   Court. 

In  the  Matter  of  the  Estate  of 
WILHELMINA  HAMMERSLT,  Owtur  and  PetUianer. 

Jon.  17. 

Ths  sabject  of  this  case  was  a  settlement  made  on  the  marriage  a  marriage 

of  Richard  Hammerslj  and  Wilhelmina  Sadlier,  and  dated  the  30th  ^^^^old 

of  April  1808.      The  facts  of  the  case  and  the  passages  which  were  J^«  ^  hoW 

the  subject  of  criticism  will  be  found  at  large  in  the  judgment  ^  ^e  wid 

The  question  arose  on  objection  to  the  draft  schedule  of.incum-  ^.  ^^  j^ 

hem  and  fu- 

brances.  signs,  from  the 

perfection   of 
these  presents, 
for  and  duing 
Mr.  Wairren  (with  him  Mr.  E,  Jf.  Kelly  and  Mr.  Flanagan)^  the  term  of  his 

in  support  of  the  schedule,  cited  Jomes\  y.  Keamay  (a) ;  Morning-  without   im- 

ion  V.  Keane  (6) ;  Holliday  v.  Dorrton  (c) ;  Barron  v.  Barron  (d) ;  5^,™*with^a 

power  to  lease, 
remainder  to 

Mr.  Hemphill,  Mr.  Roper  and  Mr.  F.    Whi$e,  in  support  of  ^^  ^^ 

objections  to  the  schedule,  cited  White  v.  Anderson  (e);  Metealf  f^^  from  the 

decease  of  JLf 
to  secore  a 
jointure  of  £80  to  B  (A*s  wife).  TheD  follows  a  covenant  bj  A,  charging  the  jointure 
on  after-acquired  estate,  with  power  of  distress; '  and  further,  that  said  l^ds,  after  the 
decease  of  the  survivor  of  A  and  B,  in  case  there  should  be  but  one  child  of  said 
marriage,  to  the  use  of  such  only  child,  and  the  heirs  of  his  or  her  bodj  lawfhllv 
issuing;  and  in  case  there  should  be  more  than  one  such  child,  then  to  such 
children  in  such  shares  and  proportions  as  the  said  A  shall  bj  deed  or  will 
appoint;  and  in  default  of  such  appointment,  then  to  the  use  of  all  the  children, 
as  tenants  in  common,  share  and  share  alike." — H§ld,  that  the  words  '*  and  lus 
heirs  "  should  be  rejected,  and  that  A  takes  a  life  estate. 

That  the  clause  beginning^  '*  and  further  **  is  a  limitation  in  contmuation  of,  and 
direct  sequence  upon,  the  limitations  to  trustees  to  preserve. 

Semble — That  if  that  clause  be  a  covenant  to  settle  after-acquired  property  on  the 
children,  a  Court  of  Equity  would  not  mould  the  trusts  in  anj  manner,  as  thej  are 
fuUj  declared. 

Semblg — That,  assuming  it  to  be  such  a  covenant,  after-acquired  property,  settled, 
irrespective  of  such  covenant,  by  A  on  a  child,  must  be  brought  into  hotchpot, 

(a)  1  Dr.  A  W.  134.  (6)  2  De.  O.  A  Sm.  (judgt.)  318. 

(c)  15  Beav.  480. 
id)  8  It.  Chan.  Rep.  366.  («)  1  Ir.  Chan.  Rep.  419. 


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230  CHANCERY  REPORTS. 

1861/       V.  ArchbUhop  of  York  (a) ;  Moore  v.  Cleghom  (b)  ;  Barlow  y. 

C — l<v '    Osborne  (c)  ;  BusheU  y.   Bushell  (d)  ;   Prachey  on   Settlemenis, 

In  re 
HAMMEBSLT    P«  ^24. 

Judgment, 

Haroreave,  J. 

.  .  This  case  comes  before  me  upon  the  objections  of  Mr.  and  Mrs. 

Sargint  and  of  Mr.  Smith  to  the  draft  schedule.  The  subject-matter 
of  the  objections  is  the  surplus  fund  arising  from  the  sale  of  the  lands 
sold  in  this  matter,  after  payment  of  the  charges.  The  draft 
schedule  proposes  to  deal  with  this  fund  according  to  certain  appoint- 
ments made  by  Wilhelmina  Hammerslj,  under  a  power  contained  in 
her  late  husband's  will,  by  which  appointments  she  has  divided 
the  fund  in  unequal  shares  among  certain  of  her  children.  The 
objectants  contend  that  no  such  power  of  appointment  exists,  inas- 
much as  they  allege  that  this  property  is  bound  in  Equity  by  the 
provisions  of  a  certain  deed  of  the  20tlrof  April  1808,  under  which 
the  children^  take  the  property  equally,  in  default  of  any  appoint- 
ment by  Richard  Hammersly  himself,  the  deceased  husband  of 
the  owner. 

These  objections  are  resisted  on  these  grounds: — ^first;  that 
the  property  is  not  affected  in  the  manner  suggested  by  the  deed 
of  1808.  Secondly ;  that  even  if  it  be  so  affected,  the  children 
are  entitled  under  that  deed  to  life  estates  only  (a  view  which  would 
partially  defeat  the  objection  of  Mr.  and  Mrs.  Sargint,  and  would 
totally  defeat  that  of  Mr.  Smith) ;  and  that,  thirdly,  Sargint  and  wife 
have  already  obtained  a  provision  from  Richard  Hammersly  by  a  con- 
veyance of  another  estate,  and  that  they  must  either  be  content  with 
that  provision,  or  bring  it  into  hotchpot. 

The  estates  sold  in  this  matter  were  acquired  by  Richard  Ham- 
mersly after  the  execution  of  the  deed  of  1808,  which  was  the 
settlement  made  on  his  marriage  with  Wilhelmina  Hammersly ;  and 
the  first  question  is,  whether  that  deed  eontains  a  covenant  by 
Richard  Hammersly  to  settle  all  his  after-acquired  estates  ?  The 
question  turns  entirely  on  the  construction  of  the  deed,  each  claaae 

(a)  1  M.  &  Or.  556.  (&)  10  Beav.  423. 

(c)  6  H.  of  L.  Cas,  575,  (rf)  1  Sch,  &  Let  90. 


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CHANCERY  REPORTS.  231 

of  which  18  conceired  in  technical  langnage,  but  whose  daiues  are        1861. 
pot  together  in  a  singularly  inartificial  manner.    Ito  constmctiony     >     \ 
therefore,  requires  a  close  consideration  of  the  whole  deed  taken  hammbeslt 

together,  and  a  critical  examination  of  its  several  clauses  and  of        

their  grammatical  and  logical  connection  inier  $e.  In  construing 
such  a  deed,  it  is  idle  to  speculate  on  the  probable  motives  of  the 
parties,  or  on  the  consequences  flowing  from  any  Articular  construc- 
tion of  the  deed.  The  property  which  Richard  Hammersly  had  at 
the  time,  and  which  was  actually  dealt  with  by  the  deed,  consisted 
of  leaseholds  for  lives  only ;  and  it  is  suggested  as  improbable  that 
the  lady  and  her  friends  would  becontent  with  a  settlement  of  pro- 
perty of  this  temporary  character;  on  the  other  hand,  it  is  suggested 
to  be  at  least  as  improbable  that  Richard  Hammersly  would  bind 
himself  to  settle  all  his  a(tei:-acquired  estates  indiscriminately,  thus 
precluding  himself  from  ever  purchasing  land,  except  for  the  pur- 
poses of  the  settlement,  and  rendering  it  impossible  for  him  to 
provide  for  a  future  wife  and  his  family  by  any  future  marriage. 
On  this,  I  can  only  observe  that  there  is  no  intrinsic  absurdity  in 
either  of  these  two  classes  of  settlement,  and  that  it  is  simply  the 
duty  of  the  Court  to  ascertain  which  of  the  two  was  intended,  by 
construing  the  deed  and  giving  effect  to  its  provisions  according  to 
the  rules  of  the  law.  The  deed  is  made  between  Richard  Ham- 
mersly, of  the  first  part,  Richard  Sadlier  and  his  daughter  Wilhel- 
mina  (now  Mrs.  Hamn^ersly),  of  the  second  part,  and  Philip  Corbett 
and  William  Sadlier,  of  the  third  part  It  recites  the  intended  mar- 
riage ;  it  then  recites,  fuUy  and  in  technical  language,  three  leases 
for  lives,  of  various  townlands  in  the  county  of  Tipperary,  made  to 
John  Hammersly,  and  that  Richard  had  become  entitled  to  these 
lands,  with  a  certain  exception,  under  the  will  of  his  deceased  father. 
The  deed  then  witnesses  that,  in  pursuance  of  the  said  marriage 
agreement  (which  must  mean  the  recited  agreement  for  the  mar- 
riage), and  in  consideration  of  the  marriage,  and  of  the  lady's  fortune 
of  £1000,  and  in  order  to  make  a  provision  for  the  said  Wilhelmina, 
by  way  of  jointure,  and  in  lieu  of  dower,  and  also  as  a  provision  for 
the  issue  of  the  marriage,  in  manner  thereinafter  expressed,  Riehard 
Hanunersly  grants  and  assigns  unto.  Corbett  and  Sadlier,  their  heirs 
and  assigns,  all  that  and  those  the  town  and  lands  (describing  them 


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232  CHANCERY  REPORTS. 

1861.        at  lengtli)  oomprised  in  the  leases,  to  hold  to  them,  their  heirs  and 
L.  E.  Court. 
r — '     assigns,  for  the  lives  in  the  leases,  to  such  uses,  upon  snch  trusts. 

In  re 
HAMMBRSLY  <^d  to  and  fbr  such  intents  and  purposes,  and  under  and  subject 


Judffment. 


to  suah  provisoes,  limitations  and  agreements  as  are  thereinafter 
expi^essed  and  declared,  of:  and  concerning  same ;  and,  subject  to  the 
head-rents  payable  thereout,*  to  the  use  of  the  said  Richard  Ham- 
mersly,  and  his  heirs  and  assigns,  from  the:  perfection  of  these  pre- 
sents, for  and  during  the  term  of  his  natural  life)  without  impeachment 
of  waste,  with  a  proviso  and  declaration  authorising  him,  during  his 
life,  to  make  leases,  so  as  not  to  diminish  the  existing  profit-rent ; 
and  after  the  determination  of  that  estate,  then  to  the  use  of  Corbett 
and  Sadlier,  and  their  heirs,  during  the  life  of  the  said  Richard  Ham- 
merslj,  upon  trust  to  support  and  preserve  the  contingent  uses  and 
estates  thereinafter  limited  firom  being  defeated  and  destroyed ;  and 
immediately  after  the  decease  of  the  said  Richard  Hammersly,  to  the 
use  of  the  said  Wilhelmina  Hammersly,  to  receive  thereout  the 
yearly  sum  or  jointure  of  £80  sterling,  by  equal  half-yeariy  pay- 
ments, for  the  term  of  her  natural  life,  with  power  to  enter  into  said 
lands  to  distrain.  The  deed  then  proceeds  in  the  fc^owing  language: — 

**  And  the  faid  Richard  Hammersly,  in  oonrideradon  of  the  said  intended  mar- 
riage, and  of  the  said  sun  of  £1000,  so  secured,  to  be  paid  as  aforesaid,  the 
portion  of  the  said  Wilhelmina,  hereinbefore  mentioned,  for  himself,  his  heirs, 
executors  and  administrators,  doth  coyenant,  promise  and  agree,  to  and  with  the 
said  Philip  Corbett  and  William  Sadlier,  their  executors  and  administrators,  that 
he  the  said  Bichard  Hammersly,  by  these  presents,  doth  charge  and  incumber  all 
and  singular  and  erery  the  sereral  and  respective  estates,  towns,  lands,  holdings, 
tenements,  hereditaments  and  premises,  wheresoever  situate,  whereof  the  said 
Bichard  Hammersly  is  now  seised  or  possessed  or  entitled  to,  and  which  he  shaU, 
at  anytime  hereafter,  become  seised,  possessed  of  or  entitled  unto,  to  the  payment 
of  the  jointure  of  £80  a-year,  as  aforesaid,  to  the  said  Wilhelmina,  his  intended 
wife,  and  with  the  like  power  of  distress  for  recoveiy  thereof  as  hereinbefore  men- 
tioned. And  further,  that  the  said  lands,  after  the  decease  of  the  sunrivor  of  them 
the  said  Bichard  Hammersly  and  Wilhelmina  Sadlier,  in  case  there  should  be  but 
one  child  of  said  intended  marriage,  to  the  use  of  such  only  child,  and  the  heirs  of 
his  or  her  body  lawfully  issuing ;  and,  in  case  there  should  be  more  than  one  such 
diild,  then  to  such  children*  in  such  shares  and  proportions  as  the  said  Richaid 
Hammersly  shall,  by  deed  or  wiU,  appoint ;  and,  in  defirndt  of  such  appointment, 
then  to  the  use  of  all  the  children,  as  tenants  in  common,  share  and  share  alike ; 
and,  if  there  should  be  no  children,  then  to  the  right  heirs  of  the  said  Bichard 
Hanmiersly,  subject  to  the  conditions  aforesaid." 

The  deed  contains  nothing  further  material  to  the  issue.    It  com- 
mences then  a  new  operative  part,  in  the  nature  of  a  covenant  and 


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CHANCERY  REPORTS.  233 

agreement,  settUng  the  wife's  fortune  of  £1000,  and  closes  with  a        1861. 

,  Zi»  E,  Court » 

covenant  by  Richard  Hammenlj  for  further  assurance,  in  general     ' ^— — ^ 

/n-  re 
terms,  and  nsual  trustee  clauses.     The  question  is,  whether  the  hammbkslt 

words,  "  and  further,  that  said  lands,  after  the  decease  of  the  sur-  j^^^l^ZL^ 
viyor,  in  case  there  should  be  but  one  child,  to  the  use  of  such  only 
child,  and  the  heirs  of  his  or  her  body,"  &c.,  are  to  be  read  in  conti- 
nuation of  the  limitation  of  uses,  treating  the  previous  words  merely 
as  a  covenant  by  Richard  Hammersly  to  give  further  security  for 
the  jointure  out  of  all  his  other  and  after-acquired  property,  or 
whether  they  are  a  continuation  of  the  covenant?  In  the  former 
case,  they  apply  only  to  the  lands  actually  conveyed ;  and,  in  the 
latter  case,  they  apply  to*  all  the  settlor's  estates,  existing  or  future, 
and  import  a  covenant  to  settle  them  on  the  issue. 

In  the  first  plaee,  and  in  support  of  the  latter  view,  it  is  con- 
tended that  the  lands  conveyed  by  the  deed  are  not,  in  fact,  thereby 
put  in  settlement  at  all,  inasmuch  as  the  first  limitation  gives  the 
absolute  interest  to  Richard  Hammersly ;  and  that  the  words  pur- 
porting to  give  him  a  life  estate,  and  also  the  subsequent  limitation 
to  trustees,  for  his  life,  are  void.  I  am  unable  to  concur  in  that  view. 
I  can  quite  understand  that,  in  construing  a  limitation  to  a  man, 
and  his  hdrs,  for  his  life,  the  Court  would  prefer  to  reject  the  words 
"for  his  life,*'  rather  than  the  words  ''and  his  heirs;''  but  where 
this  limitation  b  followed  up  by  remainders,  to  take  effect  on  his 
decease,  and  is  accompanied  by  It  power  of  leasing,  it  appears  to  me 
that  the  Court  ought  to  support  these  limitations,  by  rejecting  the 
worda  "  i^nd  his  heirs,"  which  lare  thus  cleariy  shown  to  be  intro- 
duced by  mistalw.  Where  the  Court  must  reject  either  the  words 
limiting  the  fee,  ^r  the  words  Hmiting  a  life  estate,  it  will  reject  the 
former,  if  the  other  limitations  dearly  show  that  a  life  estate  was 
intended.  If  this  be  so,  we  have  a  limitation  to  Richard  Hammersly 
for  life,  with  a  leasing  powor,  then  a  limitation  to  trustees,  for 
Ridiard's'  life,  to  support  the  contingent  remainders  thereinafter 
limited,  and  then  a  legal  jointure,  with  power  of  distress.  We  arei 
then  led  to  the  inquiry,  where  are  these  contingent  remainders,  for 
the  support  of  which  this  provision  is  inserted,  to  be  found  ?  The 
only  part  of  the  deed  in  which  they  can  be  found  is  in  the  clause 
now  «nder  consideration.    It  is  indisputable  that,  if  these  legal  con- 


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234  CHANCERY  REPORTS. 

186L  tingent  remainders  are  not  the  limitationB  to  the  children,  contained 

X.  E.  Court,  .      ,        ,  ,        ^  .  ,  .        ,  .    ,     , 

'— -> m  that  clause,  they  have  no  existence ;  and  construing  this  deed  so 

In  re 

HAMMBB8LT  &s  ^  &^^  eShct  to  all  its  clauseSi  and  so  as  to  make  one  part  of  it 

_  .  consistent  wiUi  another,  I  cannot  do  otherwise  than  hold  that  the 

Juagwtent* 

limitation  of  uses  to  children,  which  I  have  read,  are  the  very  con- 
tingent uses  and  estates  which  are  to  be  supported  and  preserved  by 
the  limitations  to  trustees  during  Richard  Hammersly's  life. 

The  question  still  remains,  whether  these  words  may  not  perform 
the  double  ifunction  of  limiting  the  legal  continent  remainders  in 
the'  estate  dealt  with,  and,  at  the  same  time,  declaring  the  uses  to 
which  the  other  and  after-acquired  property  is  to  be  conveyed  ?  I 
am  disposed  to  think  that  this  view  is  not  grammatically  or  logically 
possible.  In  order  that  they  may  perform  the  latter  function,  it  is 
essential  that  they  must  be  read  and  oonati^ed  as  part  of  the  cove- 
nant of  Richaid  Hammersly  with  Corbett  and  Sadleir ;  and  they 
would'  thus  h6  completely  separated,  in  grammatical  construction, 
from  that  part  of  the  deed  which  contains  the  limitations  of  uses.  I 
am,  therefore,  of  opinion  that,  upon  a  comprehensive  view  of  the 
whole  of  the  deed  taken  together,  the  limitations  to  the  children  are 
limitations  of  legal  contingent  remainders,  in  continuation  of  and  in 
direct  sequence  upon  the ,  limitations  to  trustees  to  preserve  those 
remainders  i  and  that  the  covenant  is  inserted,  at  the  close  of  the 
limitation  of  the  jointure,  merely  for  the  purpose  of  better  securing 
that  jointure,  and  is  to  be  read  as  a  parenthetic  tack  or  addition 
to  the  jointure. 

If  we  pass  from  the  general  structure  of  the  deed  to  a  minute 
criticism  of  its  language,  considerations  may  be  found  both  adverse 
to,  and  in  support  of,  this  view.  The  covenant,  taken  by  itself,  can 
undoubtedly  be  read  as  a  covenant  that  Richard  Hammersly  doth 
incumber  all  present  and  future  estates  with  the  jointure  of  £80 
a-year;  and  further,  that  said  lands  shall  go  to  the  use,  &c ;  and  in 
order  to  do  this,  it  is  only  necessary  to  supply  the  verb  *^  shall  go,** 
or  "  shall  enurct"  or  "  shall  stand  limited ; "  and,  if  the  covenant 
stood  by  itself,  the  Court  would  make  no  difficulty  in  supplying  such 
words.  The  want  of  this  verb,  however,  is,  perhaps,  not  altogether 
without  signification ;  because,  undoubtedly,  if  these  words  are  a 
mere  continuation  of  the  limitation  of  the  uses,  no  verb  is  required. 


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CHANCERY  REPORTS.  235 

as  it  then  becomes  only  one  of  a  string  of  uses  which  have  been        1861. 

i.  E,  Court. 

already  aptly  commenced  in  the  hiUfendum  of  the  deed ;  and,  in-     >.— «v ' 

In  re 
deed,  if  it  were  not  for  the  introduction  of  the  word  "  that  **  after  hammbrslt 

"further,"  I  think  no  grammatical  difficulty  would  have  existed.  rT~^ 
Again,  the  use  of  the  words  '^  said  lands  **  merely,  in  the  limitation 
to  the  children,  has  been  referred  to  as  indicating  a  reference  to  the 
lands  specifically  described  and  conveyed  by  the  deed,  rather  than 
to  the  existing  and  future  property  of  the  settlor,  which,  when  men- 
tioned, is  described  as  estates,  towns,  lands,  holdings,  tenements,  here- 
ditaments and  premises.  I  do  not  attach  much  importance,  in  this 
case,  to  these  minute  considerations,  though  I  will  not  say  that  they 
are  wholly  without  weight ;  I  prefer  to  base  my  opinion  on  the  general 
scope  of  the  deed. 

On  this  question  I  will  just  make  this  further  observation: — I 
have  expressed  an  opinion  that  the  legal  effbct  of  the  limitations  is 
to  give  an  estate  to  Richard  Hammersly,  for  life,  with  power  of 
leasing,  with  remainder  to  trustees,  for  his  life,  to  support  contin- 
gent remainders;  but,  on  the  principal  question,  I  should  have 
arrived  at  the  same  conclusion,  even  if  I  had  felt  myself  obliged  to 
hold  that  the  estate  was  limited  to  Richard  Hammersly  in  fee,  and 
that  the  subsequent  limitations  were  void.  The  considerations  upon 
which  I  have  based  my  conclusion  do  not  depend  upon  the  effect  of 
the  limitations  of  the  lands  conveyed,  or  even  on  the  question 
whether  those  limitations  have  any  legal  efiect  at  all  or  not,  but 
simply  on  the  fact  that  such  limitations  are  in  terms  expressed  in 
the  deed. 

The  view  which  I  take  on  this  first  questi6ti  disposes  of  the 
objections,  and  renders  it  unnecessary  to  consider  the  other  points ; 
but,  as  the  point  which  I  have  decided  is  not  free  from  doubt,  and 
as  the  other  questions  were  discussed,  I  will  shortly  state  my  opinion 
upon  them.  Assuming  that  there  is  a  covenant  to  settle  all  other 
and  a(W-acquired  property  of  the  settlor,  I  am  of  opinion  that  it 
would  be  satisfied  by  a  conveyance  of  such  property  to  the  uses 
mentioned  in  the  deed,  stating  the  uses  in  the  identical  words  iised 
in  the  deed  ;  and  that  a  Court  of  Equi^  could  not  and  would  not 
mould  those  limitations  in  any  manner.    Although  the  trusts  are 


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236  CHANCERY  REPORTS. 

1861.        not  executed,  jet  they  are  fully  declared,  and  could  not  be  added  to 

\»  \    ■■/*    or  altered,  by  adding  words   of  limitatioD,   or    cross  remaiiiders 

HAMMBRSLT  ^^^^^  ^^®  children,  or  provisions  for  maintenance,  or  any  other 


Judgment, 


usual  clauses.  But  I  think  that  the  words  would  be  sufficient  to 
pass  to  the  children  the  absolute  interest  in  freehold  leases,  and  that 
such  interest  would  pass  to  the  executors  of  a  deceased  child,  under 
the  statute  abolishing  general  occupancy. 

On  the  remaining  question  I  find,  on  reference  to  the  deed  set- 
tling fiallyhane  on  Mr.  and  Mrs.  Sargint,  that  it  does  not  purport  to 
be  made  in  execution  of  any  supposed  power  vested  in  Richard 
Hammersly,  under  the  settlement  or  otherwise ;  and  that,  in  fact,  it 
is  an  ordinary  conveyance  or  settlement  made  by  an  owner  in  fee. 
I  must  regard  this  as  a  satisfaction,  pro  tanio  at  least,  of  the  cove- 
nant, in  so  far  as  Mrs.  Sargint  has  a  beneficial  interest  in  such 
covenant ;  and  that,  if  she  fil^d  a  bill  for  specific  performance  of  the 
covenant,  she  would  fail,  if  the  property  conveyed  to  her,  or  settled 
with  her  consent,  was  equal  in  value  to  her  aliquot  share  of  the 
settlor's  real  estate ;  and  that  if  it  was  of  smaller  value  she  could 
only  rebover  the  balance ;  or,  in  other  words,  that  she  would  be 
obliged  to  bring  this  provision  into  hotchpot. 


In  tke  Matter  of  the  Estate  of  the 
Assignees  of  JOHN  SALLERY,  Owners  and  PetiHoners. 


Feb.  20. 


A,  by  his  will,  The  facts  of  this  case,  which  was  unsupported  by  authority  <m  eithw 
dated  29th  of  «     •    i 

May  1839,  be-  aWe,  appear  in  the  judgment, 
queathed    to 

his  ill^itimata  fon,  B.  S.,  certain  leaaeholds,  and,  if  the  said  B.  S.  should  die  with- 
out "heirs  or  issue,  "  orer. — Held,  that  as  the  29th  section  of  the  Wills  Act  is 
expresslj  confined  to  the  word  **  issne,"  it  makes  no  change  in  the  meaning  of  the 
expression  "  die  without  heirs  of  the  body; "  and,  therefore  ('*  without  heirs, "  in 
the  said  will,  mean^  "  without  heirs  of  the  body,"  R.  S.  being  illegitimate),  the 
will  did  not  confer  the  absolute  interest  on  B.  8.,  with  an  executory  devise  oyer 
in  the  case  of  his  dyins  without  issue  liying  at  his  death,  but  an  estate  tail,  and,  the 
property  being  leasehold,  the  absolute  interest. 


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CHANCERY  BEPOETS.  237 

Mr.  Henry  FUzgihhon  and  Mr.  J.  Vereker  appeared  for  the        1861. 

X.  E.  Ccwi. 
several  parties. 


DOBBS,  J.  Judgment. 

This  case  would  have  been  perfectly  free  from  doubt,  were  it  not 
for  the  29th  section  of  the  Wills  Act,  1  Ftc,  0.  26.    Robert  Sallerj, 
senior,  by  his  will,  bearing  date  the  20th  of  May  1839>  amongst  other 
things,  bequeathed  to  his  ill^timate  son,  Robert  Sallery,  all  the  part 
of  his  holding  of  the  lands  of  Sandymount,  containing  fifty-four 
acres,  at  the  yearly  rent  of  thirteen  shillings  per  acre ;  and  the  tes- 
tator ordered  that  if  the  said  Robert  Sallery  should  die  without 
heirs,  or  issue,  the  said  lands  of  Sandymount  should  revert  to  the 
testator's  brother,  John  Sallery,  his  heirs,  executors,  administrators 
and  assigns.    Now  there  is  no  doubt  that  if  this  will  were  to  be  con- 
strued by  the  law  as  it  stood  before  the  late  Act,  Robert  Sallery  being 
illegitimate,  the  word  '*  heirs  **  must  be  taken  to  mean  ^*  heirs  of  the 
body ; "  and  therefore  the  words  *'  without  heirs  or  issue  **  would  have 
been  held  to  mean  an  indefinite  failure  of  issuer  and  the  efiect  of 
those  words  would  have  been  to  create  an  estate  tail  in  freehold 
lands,  and  an  absolute  interest  in  chattel  lands,  in  Robert  Sallery, 
the  devisee.    But  the  old  law  has  been  changed  by  the  29th  section 
of  the  Wills  Act,  which  enacts,  **  That  in  any  devise  or  bequest  of 
real  or  personal  estate,  the  words  '  die  without  issue,*  or  ^  die  without 
leaving  issue,*  or  *  have  no  issue,'  or  any  other  words  which  may  im- 
port either  a  want  or  failure  of  issue  of  any  person  in  his  lifetime, 
or  at  the  time  of  his  death,  or  an  indefinite  failure  of  his  issue, 
shall  be  construed  to  mean  a  want  or  failure  of  issue  in  the  lifetime, 
or  at  the  time  of  the  death,  of  such  person,  and  not  an  indefinite 
£fdlure  of  his  issue,  unless  a  contrary  intention  shall  appear  by  the 
wilL"     Now  if  this  section  applies  to  the  present  case,  Robert 
Sallery  does  not  take  absolutely ;  but  there  is  an  executory  devise 
over  to  John  Sallery,  in  the  event  of  Robert  Sallery  not  leaving 
issue  living  at  his  death.  The  legal  meaning  of  the  phrase  "  without 
issue,"  under  the  old  la#,  was  opposed  to  the  popular  one,  according 
to  which  it  signified  *<  without  children  ;**  and,  therefore,  by  the 
Wills  Act  of  1837,  a  change  was  introduced,  the  efiect  of  which 


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CHANCERY  REPORTS. 


186L 
Xr«  E,.  Court* 


Judgment, 


was  to  make  the  legal  meaning  conformable  with  the  popular  one» 
as  being  present  to  the  minds  of  most  testators.  Bot  the  change 
in  the  law  is,  by  the  words  of  the  Act,  confined  to  the  construction 
of  the  words  "die  without  issue,''  and  the  like  words,  and  does 
not,  in  terms,  apply  to  the  construction  of  words  which  import 
dying  without  heirs  of  the  body ;  it  being  a  clear  principle  of  con- 
struction that  "  expressio  unius  est  exelusio  alterius  ;"  and  there  not 
being  the  same  reasbn  for  a  change  of  construction  where  the 
words  "heirs  of  the  body"  are  used,  as  where  the  word  "issue" 
is  used,  I  am  of  opinion  that  the  words  "  die  without  heirs  of  the 
body,"  and  similar  expressions,  are  not  within  the  meaning  of  the 
section,  and  therefore  are  to  be  construed  as  they  were  before  the 
Act  passed.  I  have  been  unable  to  find  any  authority  on  this 
point ;  but,  for  the  reasons  I  have  mentioned,  it  appears  to  me  to 
be  qikite  clear,  that  the  intention  of  the  Legislature  was  to  confine 
the  change  of  construction  to  the  cases  in  which  the  word  "  issue  " 
is  used  by  testators.  It  is  a  well  known  principle  of  construction, 
that  effect  should  be  given,  if  possible,  to  every  word  of  a  will. 
Now  the  words  in  this  will  are  not  only  "without  issue,"  but 
"without  heirs  or  issue ; "  I  must,  therefore,  if  I  can,  give  effect 
to  both  words.  The  testator  has  shown  throughout  the  will  that 
he  perfectly  understood  the  meaning  of  the  word  heir ;  he  has  used 
it  several  times,  but  never  otherwise  than  in  its  strictly  legal  sense 
as  a  word  of  limitation.  Robert  Sallery's  estate,  therefore,  does 
not  go  over  until  he  dies  without  heirs  of  his  body ;  the  effect  of 
which  would  be  to  give  him  an  estate  tail  in  freehold  lands ;  and 
the  property  here  being  a  chattel  real,  he  takes  the  absolute  in- 
terest therein. 


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CHANCERY  REPORTS.  239 


1860. 
CA.  Appeal, 


PHILIP  CHARLES  NEWTON,  PlainHff; 

PHILIP  JOCELYN  NEWTON,  HENRY  NEWTON, 

ARTHUR  FITZMAURICE  and 

BEAUCHAMP  FREDERICK  BAGENAL,  Defendants: 

THOMASINE  JANE  ROBERTS,  Iniervenient. 

Nov.  5,  6,  9. 

This  oauae  came  before  the  Court  on  a  petition  presented  by  the  Where  the 

Jadge  of  the  * 
defendant  Philip  Joceljn  Newton,  heir-at-law  of  John  Newton,  Court  of  Pro. 

by  which  this  defendant  soaght  to  reverse  an  order  of  the  Jndge  igsaeg  respect- 

of  the  Court  of  Probate,  directing  certain  issues  to  be  tried  by  ^   papei^ 

a  special  jury  before  the  Court  of  Probate  itself.    The  following  Ap™^**^^ 

were  the  material  fiicts    appearing  on  the  petition : — The  said  J^^r^^merd* 

John  Newton  was,  at  the  time  of  his  death,  seised  in  fee-simple  on  the  ground 

*^      that  theiisues 
of  certain  lands  in  the  county  of  Carlow,  and  died  in  October  1869*  directed  do  not 

excmde  aU  . 
Before  1858,  John  Newton  duly  executed  several  testamentary  consideration 

of  questions  of 
instruments;  among  others,  a  will  dated  the  I6th  of  September  law. 

1860;  another  dated  the  23rd  of  February  1852;  another  dated  Statement. 
the  29th  of  December  1852 ;  a  codicil  dated  the  6th  of  October 
1853;  another  dated  the  3rd  of  Deceinber  1854;  and  a  third 
dated  the  17th  of  October  1854.  From  the  time  of  dieir  exe- 
cution these  documents  remained  in  the  custody  of  various  parties, 
until  after  the  death  of  the  said  John  Newton.  John  Newton 
duly  made  another  will,  dated  the  4th  of  February  1858,  and 
thereby  revoked  all  former  wills  by  him  made,  and  thereby  devised 
all  his  real  property  to  William  Forbes  Johnson  and  his  heirs, 
upon  trust,  out  of  the  rents  and  profits  thereof,  to  pay  yearly 
unto  Miss  Thomasine  Jane  Roberts,  the  intervenient,  an  annuity 
of  £100  a-year.  Then  he  directed  the  trustee,  by  sale  or  mortgage, 
to  raise  the  sum  of  £500  for  Beauchamp  Newton  Johnson,  son 
of  Charles  Fraser  Johnson,  solicitor ;    then,  subject  to  the  annuity 


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CHANCERY  REPORTS. 


1860. 
Ch,  AppeaL 

V. , ' 

19EWTON 

V. 
NBWTON. 

Statement, 


and  bequest,  he  devised  his  said  estates  to  the  use  of  the  children 
of  his  marriage,  as  tenants  in  common  in  fee,  and,  in  default  of 
such  issue,  to .  the  use  of  Philip  Charles  Newton,  the  plaintiff, 
for  life,  with  remainder  to  hb  first  and  other  sons  in  tail  male, 
with  remainder  to  his  issue  female,  as  therein  mentioned,  remainder 
to  his  own  right  heirs  ;  and  the  said  testator  thereby  provided 
for  payment  of  his  simple  contract  debts,  and  payment  of  funeral 
and  testamentary  expenses,  out  of  two  policies  of  insurance  for 
£1000 each;  and  also  directed  that  the  residue  afceir  those' pay- 
ments should  be  handed  to  his  said  nephew,  Philip  Charles  Newton, 
to  whom  testator  thereby  bequeathed  such  residue.  The  testator 
then  bequeathed  the  residue  of  his  property,  real  and  personal, 
upon  trust,  for  the  person  or  persons  who  under  his  will  might, 
at  the  expiration  of  ten  months  from  the  day  of  his  death,  be 
entitled  to  the  lands  thereinbefore  devised.  The  will  was  prepared 
in  Dublin  by  said  C.  F.  Johnson,  a  solicitor,  and  was  executed  by 
the  said  John  Newton  on  the  day  on  which  it  bears  date.  Imme- 
diately upon  its  execution,  the  said  John  Newton  took  the  will  into 
his  own  possession ;  and,  though  search  was  made  for  it  after  the 
death  of  the  said  John  Newton,  it  was  not  forthcoming;  but  a 
document  purporting  to  be  a  copy  or  the  original  draft  of  the 
said  will  was  retained  by  said  C.  F.  Johnson,  and  lodged  in  the 
Court  of  Probate. 

John  Newton  made  and  published  another  will,  dated  the  24th 
of  April  1868,  thereby  revoking  all  former  wills  theretofore  made 
by  him;  and  thereby,  after  a  bequest  to  his  wife  for  life,  he 
bequeathed  all  his  other  property,  real  and  personal,  to  P.  C. 
Newton,  the  plaintiff,  his  heirs  and  assigns,  for  ever,  and  nomi- 
nated the  said  plaintiff  his  residuary  legatee,  and  Arthur  Fitzmau- 
rice  to  be  e:2^ecutor.  The  last-mentioned  will  was  prepared  by 
Charles  Thorp,  a  solicitor,  was  executed  by  John  Newton,  and, 
until  after  the  death  of  the  said  John  Newton,  it  remained  in 
the  custody  of  the  said  Charles  Thorp. 

The  said  John  Newton  made  another  will,  dated  the  11th  of 
January  1859>  thereby  revoking  all  former  wills;  and  by  it, 
after  certain  bequests  to  his  wife  during  her  life,  with  remainder 


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CHANCERY  REPORTS.  241 

to  the  said  plaintitf,  and  directing  his  personal  estate  to  be  sold,         I860. 

Ch.  Appeal, 
he  devised  his  real  estates  to  the   said   Arthur  Fitzmaurice,  his 


heirs  and  assigns,  to  the  use  of  any  child  he  might  have,  his  or 

her  heirs,  for  ever;  and,  in  case  there  should  be  no  such  child, 

subject  to  the  annuities   thereby  charged  thereon,  to  the  use  of     statement. 

P.  C.  Newton  for  life,  remainder  to  his  firkt  and   other  sons  in 

tail ;  in  default,  to  Beauchamp  Frederick  Bagenal  for  life,  remainder 

to  his  first  and  other  sons  in  tail,  and,  in  default,  to  his  own  right 

heirs;  and   he  thereby  gave  certain  annuities   and  legacies,   and 

appointed  Arthur  Fitzmaurice  sole  trustee  and  executor  of  his 

said  will.      This  last  will  was   prepared  by  Thomas  Jameson,  a 

solicitor,  and  was   duly  executed   on  the  day  on   which  it  bears 

date;  and,  shortly  af^r  its   execution,  it  was  forwarded  to  said 

Fitzmaurice,  in  whose  possession  it  remained  until  after  the  death 

of  the  said  testator. 

On  the  7th  of  February  1859)  Mr.  Newton  made  a  codicil  to 
his  last  will,  which  was  prepared  by  Mr.  John  Litton,  a  solicitor, 
and  was  duly  executed  on  the  day  it  bears  date.  From  the  time 
of  its  execution  until  after  the  death  of  Mr.  Newton,  the  codicil 
remained  in  the  possession  of  Mr.  Litton.  On  the  16th  of  February 
18599  Mr.  Newton  duly  made  a  codicil  of  that  date,  which  com- 
menced as  follows : — '*  This  is  a  codicil  to  the  last  will  and  testa- 
ment of  me,  John  Newton,  of  Bagenalstown-house,  in  the  county 
of  Carlow,  Esq.,  bearing  date  on  pr  about  the  4th  day  of  Febru- 
ary 1858,  and  which  I  desire  may  be  considered  as  annexed  to 
and  be  taken  as  part  thereof."  It  then  made  provisions  revoking 
the  bequests  to  Philip  Charles  Newton,  in  case  of  marrying  in 
the  lifetime  of  the  testator  without  his  knowledge;  and  it  termi- 
nated— '*  In  all  other  respects  I  confirm  my  said  will,  especially 
that  part  of  it  whereby  I  charge  my  said  estates  with  the  sum 
of  £500  for,  and  bequeath  the  same  to,  Beauchamp  Newton  John- 
son, and  which  bequest  I  hereby  repeat  and  re-aflSrm."  The 
last-mentioned  codicil  was  prepared  in  Dublin,  by  the  said  C.  F. 
Johnson.  After  its  execution,  this  codicil  remained  for  a  short 
time  in  the  possession  of  the   said  G.  F.  Johnson ;  but,   on  th» 

10th  of  May    1859,   ^r.  Newton  wrote  the  following  letter:-^ 
VOL.  11.  31 


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242 


CHANCERY  REPORTS. 


1860. 
CA.  Appeal 

NEW  TON 

V. 
l^EWTON. 

Statement. 


"My  dbar  Johnson — I  wrote  to  you  on  Sunday  for  the  paper 
I  executed  about  Ham,  on  account  of  his  affair  with  Miss  B. ; 
will  you  be  so  good  as  to  send  it  to  me  by  return. — Ever  yours, 
most  truly— -John  Newton."  The  person  referred  to  in  the  said 
letter  as  **  Ham  "  was  the  plaintiff  P.  C.  Newton,  and  the  paper 
referred  to,  the  codicil  of  February  1859;  and  the  said  Charles 
Fraser  Johnson  forwarded  it  by  post  to  Mr.  Newton. 

The  petition  of  appeal  then  alleged  that  Mr.  Johnson  retained 
a  copy  or  original  draft  of  this  codicil,  which  was  lodged  in  Her 
Majesty's  Court  of  Probate.  That  search  was  made  for  the  said 
last-mentioned  codicil,  after  the  death  of  the  said  John  Newton, 
but  that  it  could  not  be  found;  and  the  appellant  alleged  that 
it  was  destroyed  by  the  said  John  Newton  in  his  lifetime,  with 
the  intention  of  revoking  the  same. 

Mr.  Newton  having  died,  the  plaintiff  in  the  Court  below, 
Mr.  P.  C.  Newton,  on  the  27th  of  March  1860,  filed  the  fol- 
lowing  declaration  in  the  Court  of  Probate : — "  Philip  Charles 
Newton,  by  Thomas  Jameson,  his  attorney,  says  that  John  New- 
ton, Esq.,  late  of  Bagenalstown-house,  \n  the  county  of  Carlow, 
deceased,  who  died  on  or  about  the  21st  day  of  October  1859, 
at  Wilton,  in  the  county  of  Wexford,  made  his  last  will  and 
testament,  and  a  codicil  thereto,  bearing  date,  to  wit,  the  said 
will,  on  the  4th  day  of  February  1858,  and  the  said  codicil,  on 
the  16th  day  of  February  185^,  but  which  said  will  and  codicil 
were  not  forthcoming  at  the  death  of  said  deceased,  and  which  will 
and  codicil  were 'respectively  in  the  words  and  figures,  and  to  the 
purport  and  effect  contained  and  expressed  in  two  exhibits,  deposited 
by  C.  F.  Johnson,  solicitor,  in  the  registry  of  this  Court,  on  or  about 
the  19th  day  of  January  I860,  and  referred  to  in  the  affidavit  of 
said  C.  F.  Johnson,  filed  in  this  Court  on  the  19th  day  of  January 
last,  and  entitled,  *  In  the  goods  of  John  Newton,  deceased,'  and 
therein  described  as  the  drafts  respectively  of  said  will  and  codicil ; 
and  which  sc^id  will  and  codicil  were  respectively  reduced  into  writing, 
and  sign^  by  said  testator  in  the  presence  of  two  witnesses,  present 
at  the  same  time,  and  who  subscribed  the  same  in  the  presence  of 
said  testator,  and  of  each  other ;  and  the  said  testator  was,  at  the 


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CHANCERY  REPORTS. 


243 


time  of  the  execution  of  the  said  will  and  codicil  respectively,  of 
perfect  sound  mind,  memory  and  understanding,  and  which  said  will 
and  codicil  were  by  said  testator  afterwards  in  his  lifetime  destroyed, 
with  the  design  not  of  absolutely  revoking  same,  but  with  the  design 
of  thereby  giving  effect  to  a  certain  other  testamentary  instrument, 
namely,  a  will,  dated  the  11th  day  of  January  1859;  and  which 
object  and  intention  of  said  testator  having  failed,  by  reason  that  such 
other  testamentary  instrument  had  been  itself  revoked,  and  become 
inoperative,  the  said  will,  dated  the  4th  day  of  February  1858,  and 
codicil,  dated  the  16th  day  of  February  1859>  are  unrevoked,  and  in 
full  force  and  virtue ;  and  in  which  will  of  the  4th  day  of  February 
1858  the  said  Philip  Charles  Newton  is  named  as  a  devisee  and 
legatee,  and  of  which  will  said  testator  named  William  Forbes 
Johnson  and  Arthur  Fitzmaurice  executors."  To  this  the  appellant 
pleaded,  and  says  that  the  will  and  codicil,  in  the  declaration  men- 
tioned  to  bear  date  respectively  the  4th  of  February  1858  and  16th 
of  February  1859)  formed  the  last  will  and  testament  of  the  deceased, 
and  that  the  said  will  and  codicil  were,  and  each  of  them  was, 
destroyed  by  the  said  deceased  in  his  lifetime,  with  the  intention  of 
revoking  the  same. 

The  defendant  B.  F.  Bagenal,  who  was  a  minor,  pleaded  by  his 
guardian,  that  the  will  and  codicil  alleged  b^  plaintiff  were  respect- 
ively destroyed  by  said  testator  in  his  lifetime,  with  the  ddsign  and 
intent  of  absolutely  revoking  and  rendering  null  and  void  the  same 
will  and  codicil  respectively ;   and  that  the  true  last  will  of  said 
deceased  testator  was  the  will  of  the  11th  day  of  January   1859. 
In  April  1860,  the  intervenient,  Thomasine  Jane  Roberts,  by  leave 
of  the  Court,  pleaded  that  the  said  will  of  the  4th  of  February  1858, 
and  said  codicil  of  the  16th  of  February  1859,  were  not  forthcoming, 
and,  if  destroyed  by  the  said  testator,  were  So  destroyed  by  him  with 
the  design,  object  and  intention  of  giving  effect  to  said  will  of  the 
Llth  of  January  1859;  and  that  if  the  said  design  and  object  or 
intention  had  failed  or  been  defeated,    by  reason  that  such  other, 
testamentary  instrument  of  the  11th  of  January  1859  had   been 
itself  revoked  and   become   inoperative,  the  said  Thomasine  Jane 
Roberts  insisted  that  the  will  of  the  4th  of  February  1858,  and 


1860. 
Ch,  Appeal. 

NEWTOH 

V, 
NEWTON. 

Statement. 


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CHANCERY  REPORTS. 


1860. 
Ch,  Appeal, 

NEWTON 

V. 
NEWTON. 

Statement, 


codicil  of  the  1 6th  of  February  1 859i  were  unrevoked,  and  in  foil 
force  and  virtue,  and  the  said  Thomasine  Jane  Roberts  a  devisee  or 
legatee  named  in  said  last  mentioned  will ;  but  that,  if  said  will  of 
the  4th  of  February  1858,  and  codicil  of  the  16th  of  February  1859, 
were  not  in  full  force  and  effect,  that  said  codicil  or  testamentary 
instrument  of  the  7th  of  February  1859  was  in  full  force,  and  the 
said  T.  J.  Roberts  a  devisee  and  legatee  in  the  same. 

In  April  1860,  the  cause  was  set  down  for  hearing  before  the 
Court  of  Probate,  upon  affidavits.      In  May  I860,  the  defendant 
B.  F.  Bagenal  obtained  leave  of  the  Court  to  file  further  pleas,  and, 
accordingly,  pleaded,  first,  that  the  will  bearing  date  the  11th  of 
January  1859  was  revoked,  but  was  still  the  last  will  of  deceased; 
and  that  the  alleged  codicil  of  the  16th  of  February  1859  was  not 
the  true  last  will  and  testament  ^of  said  deceased,   nor  a  codicil 
thereto,  nor  to  any  other  will  of  deceased ;  for  that  deceased  never 
executed  said  alleged  codicil,  knowing  the  contents  and   purport 
thereof,  and  with  the  intent  that  same  should  be  his  last  will  and 
testament,  or  any  part  thereof,  or  any  codicil  thereto;  and  that, 
if  same  was  ever  signed  by  him,  still  it  was  so  signed  by  him  in 
ignorance  of  the  contents  thereof,  and  without  any  intention  that 
the  same  should  be  his  last  will  and  testament,  or  any  part  thereof, 
or  any  codicil  thereto,  or  that  same  should  revoke  any  will  or 
bequest  of  his ;  and  that  it  was  so  signed,  being  substituted  by  the 
solicitor  of  said  deceased  for  and  instead  of  an  instrument  of  said 
deceased,  intended  to  be  of  a  different  import  and  effect,  which  said 
deceased  did  intend  to  sign,  and  in  fact  supposed  he  was  signing,  when 
he  erroneously  put  his  name  to  said  alleged  codicil,  contrary  to  his 
intention :  and,  secondly,  that  the  will  of  the  1 1  th  of  January  1 859  was 
the  last  will  and  testament  of  said  deceased,  and  was  still  unrevoked, 
and  that  the  said  alleged  codicil  of  the  16th  of  February  1859  did 
not  revoke  same  ;  for  that,  on  the  last  mentioned  day,  said  deceased 
being  displeased  with  P.  C.  Newton,  because  of  his  then  intending 
to  contract  a  certain  marriage,  and  said  will  being  at  that  time  the 
will  and  testament  of  deceased,  he  (said  deceased)  directed  C.  F. 
Johnson  to  draw  up  a  codicil  conditional  upon,  and  in  reference  to, 
^aid  marriage,  in  case  same  should  take  effect,  and  not  otherwise^ 


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CHANCERY  REPORTS.  245 

and  as  a  codicil,  or  in  the  nature  of  a  codcil  to  his  then  last  will ;         1860. 

but  he  did  not  direct  that  the  same  should  refer  to  or  set  up  any  _J^  ^^3' 

will  dated  the  4th  of  February  1858 ;  and,  therefore,  the  said  C.  F.  ^^"^^^^ 

Johnson,  without  instructions  from,  or  knowledge  of,  deceased,  and  newton. 


without  the  words  hereafter  mentioned  being  directed  to  be  inserted  stattment. 
therein,  or  being  read  by  said  deceased  after  insertion,  added  to  and 
inserted  in  said  paper  or  codicil  the  words  following,  that  is  to  say, 
'bearing  date  on  or  about  the  4th  day  of  February  1858,'  'and  to 
the  residue  of  my  personal  property  out  of  the  same  land,'  '  and  per- 
sonal ; '  '  especially  that  part  of  it  whereby ; '  '  and  which  bequest  I 
hereby  repeat  and  re-affirm ; '  and  the  said  C.  F.  Johnson  after- 
wards, by  representing  to  said  deceased  that  said  alleged  codicil, 
with  said  words  so  introduced  (but  without  informing  deceased  of 
such  words  having  been  introduced),  was  framed  according  to  his 
instructions,  and  without  deceased  having  read  same,  or  being  aware 
thereof,  or  of  the  purport  or  effect  of  said  paper  or  codicil,  and  with- 
out intending  to  revoke  said  last  will,  or  any  part  thereof,  except  in 
the  event  of  the  solemnisation  of  said  intended  marriage,  which 
never  was  solemnised,  procured  the  signature  of  said  deceased  to 
said  paper  or  codicil,  and  which  paper  or. codicil  was  afterwards 
destroyed  by  said  deceased,  with  the  intent  of  rendering  same 
wholly  inoperative  for  any  purpose.  Wherefore  defendant  eaith 
that  said  paper  or  codicil,  so  far  as  regards  said  words,  so  inserted 
as  aforesaid,  is  not  a  will  or  codicil  of  deceased ;  and  said  deceased 
never  intended  that  said  words  should  form  part  of  said  paper  or 
codicil,  or  of  any  other  will  or  codicil  of  said  deceased,  and  said 
words  ought  to  be  expunged  therefrom;  and  that  said  will  never 
was  revoked  by  said  deceased  by  said  paper  or  codicil,  or  otherwise, 
but  is  now  his  true  last  will  and  testament." 

On  the  15th  of  May  1860,  the  appellant  applied  to  the  Court  by 
motion,  that  the  further  pleas  of  B.  F.  Bagenal  might  be  set  aside, 
or  reformed,  as  in  the  notice  of  motion  mentioned ;  whereupon,  on 
the  22nd  day  of  May  I860,  it  was  ordered  that  the  said  order,  bear- 
ing date  the  8th  day  of  May  I860,  should  be  discharged,  and  that 
the  said  pleas,  filed  by  said  Beanchamp  Frederick  Bagenal,  on  the 
8th  of  May  1860,  should  be  set  aside,  and  that  the  costs  of  said  order, 
bearinir  date  the  8th  day  of  May  1860,  and  of  said  pleas,  should 


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CHANCERY  REPORTS. 


1860. 
Ch,  Appeal. 


Statment. 


be  costs  in  the  cause ;  and  it  was  thereby  further  ordered  that 
the  following  questions  be  tried  by  a  special  jury  of  the  city  of 
Dublin,  before  the  Court  itself;  viz.,  First;  ''Whether  the  paper 
writing  marked  '  A/  and  in  the  plaintiff's  declaration  mentioned, 
or  any  and  what  parts  or  part  thereof,  are  or  is  a  true  copy 
of  a  codicil  in  said  declaration  alleged  to  bear  date  on  the  l6th 
of  February  1869,  and  tO'  have  been  made  by  John  Newton, 
deceased,  the  deceased  in  this  cause,  and  not  now  forthcoming, 
and  to  be  a  codicil  to  a  certain  will,  in  said  declaration  also  alleged 
to  have  been  made  by  said  John  Newton,  deceased,  and  not  now 
forthcoming,  and  bearing  date  the  4th  of  February  1856;  and,  if  so, 
whether  such  alleged  codicil,  bearing  date  the  16th  of  February 
1859,  and  said  alleged  will,  bearing  date  the  4th  of  February 
1858,  were  together,  at  any  time,  the  last  will  and  testament 
of  John  Newton,  deceased  ?  " 

Second ;  '*  Supposing  the  said  alleged  codicil,  bearing  date  the 
16th  of  February  1859,  or  any  parts  or  part  thereof,  and  said 
alleged  will,  bearing  date  the  4th  of  February  1858,  to  have 
been  together,  at  any  time,  the  last  will  and  testament  of  John 
Newton,  deceased,  were  the  said  will  and  codicil  subsequently 
revoked  by  the  said  John  Newton?" 

From  this  order  the  present  appeal  was  brought  by  the  heir- 
at-law  of  Mr.  John  Newton. 


Mr.  Serjeant  Lawson,  and  Mr.  Brewster ^  with  them  Mr.  Charles 
ShaWy  for  the  appeal. 
Argument.  There  is  no  use  in  sending  to  the  jury  questions  of  law.     If  it  be 

admitted  that  the  document  produced  is  really  a  copy  of  the  codicil 
of  the  16th  of  February  1859,  that  codicil,  of  necessity,  sets  up  the 
will  of  the  4th  of  February  1858,  thus  revoking  the  subsequent 
will.  No  evidence  is  admissible  to  show  that  Mr.  John  Newton 
had  an  intention  different  from  the  legal  effect  of  his  act.  Since 
the  Wills  Act,  7  W.  4,  and  1  Vic.  c.  27,  no  evidence  is  admissible 
of  an  intention  to  revive  a  revoked  will,  save  by  the  re-execution 
of  it.  Nothing,  in  fact,  is  to  be  decided  in  this  case,  except  a 
question  of  law.  If  the  Judge  required  further  evidence,  he  ought 
to  have  obtained  it  under  tiie  36th  section  of  the  Probate  Act. 


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247 


There  is  no  evidence  before  the  Coart  to  raise  any  doubt  upon 
the  state  of  facts. 

Mr.  BaUersby,  Mr.  E.  Johnston,  Mr.  J.  T.  Ball,  Mr.  J.  E. 
Walsh,  Mr.  Lloyd,  and  Mr.  Litton,  contra. 

The  policy  of  the  Probate  Act  is  to  have  questions  of  fact  deter- 
mined by  a  jury.  Here  there  are  several  questions  of  fact ;  one, 
whether  the  writing  produced  is  a  copy  of  the  alleged  codicil; 
another,  whether  the  testator  was  aware  of  the  effect  of  the  codicil, 
or  of  his  revocation  of  it ;  again,  whether  he  intended  to  revoke  the 
will:  Steward  v.  Snow  (a)  i  Perrott  v.  Perrott{b)i  Patten  v. 
Poulton{e)\  Onions  v.  Tyrer  {d)  ;  Goodright  v.  Glazier  (e); 
Walpole  V.  Cholmondely  (f) ;  Kirke  v .  Kirke  {g) ;  Short  d.  Gas- 
trell  V.  Smith  {k) ;  Locke  v.  James  (t) ;  Payne  v.  Trappes  (k) ;  Be 
De  Bode  (/)  ;  Be  Applebee  (m). 


1860. 
Ch,  AppedL 

^— — V ' 

NEWTON 

V. 
NEWTON. 

Argument. 


The  LoBD  ChanceIlor. 

This  case  comes  before  the  Court  upon  an  appeal  from  an  order 
made  by  the  Judge  of  the  Court  of  Probate,  by  which  he  directs  that 
certain  issues  shall  be  tried  before  himself  and  a  jury.  These  issues 
relate  to  the  will  of  the  late  Mr.  John  Newton,  and  beyond  doubt 
they  involve  two  questions  of  fact;  that  is  to  say,  first;  "Whether 
the  paper  writing  marked  'A,'  or  any  and  what  part  or  parts 
thereof,  are  or  is  a  true  copy  of  a  codicil  alleged  to  bear  date  on 
the  16th  of  February  18599  ^^^  to  have  been  made  by  John 
Newton  deceased,  and  not  now  forthcoming;  and  if  so,  whether 
sach  alleged  codicil  and  the  alleged  will,  bearing  date  the  4th 
of  February  1858,  were  together  at  any  time  the  last  will  and 
testament  of  John  Newton  deceased  ?  ^  Second ;  "  Supposing  the 

(a)  1  Mil.  626.  (6)  U  East,  440. 

(0  4Jiir.,  N.  S.,84l. 
(<f)  1  P.  Wmi.  343  i  S.  C,  Prec  Ch.  459. 
(«)  4  Burr.  2512.  (J)  7  T.  R.  138. 

{g)  4  Bum.  435.  (A)  4  East,  419. 

(0  11  M.  &  W.  901.  (Jk)  5  N.  C.  152. 

(0  5  N.  C.  189.  (m)  1  Hog.  143. 


Nov.  9. 
Judgment. 


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248 


CHANCERY  REPORTS. 


1860. 
Ch,  Appeal. 

NEWTON 

V. 
NEWTON. 

Judgment, 


said  alleged  codicil  and  will  to  have  been  together,  at  any  time,  the 
last  will  and  testament  of  said  John  Newton  deceased,  were  the 
said  will  and  codicil  subsequently  revoked  by  the  said  John 
Newton?"  Now,  on  the  face  of  these  issues,  they  are  plain 
ordinary  questions  of  fact,  arising,  and  obviously  arising,  out  of 
the  proceeding  before  the  Court;  bec^iuse  that  proceeding  was  in- 
stituted for  the  purpose  of  deciding  whether  these  documents, 
or  any  others,  constituted  the  will  of  Mr.  Newton.  The  Judge 
of  the  Court  of  Probate,  on  examination  of  the  evidence  before 
him,  which  consisted  mainly  of  two  affidavits,  and  on  inspection 
oft  the  various  wills  executed  by  Mr.  Newton,  thought  it  was  a 
case  in  which  he  ought  to  have  the  assistance  of  a  jury  in  com- 
ing to  a  final  opinion  on  the  facts.  As  I  have  stated,  this  appeal 
is  brought  from  his  order  directing  these  issues  to  be  tried,  and, 
on  this  ground,  that  in  point  of  fact  there  was  no  question  what- 
ever to  be  tried;  or  that  if  there  were  one,  it  was  one  which 
ought  not  to  be  tried  on  an  issue ;  but  that  it  was  the  duty  of 
the  Judge  to  have  decided  the  case,  either  on  the  evidence  be- 
fore him,  or  in  a  proceeding  under  the  d6th  section  of  the  20 
and  21  Ftc,  c.  79;  that  he  ought  to  have  dealt  with  the  case 
in  one  or  other  of  these  modes,  and  thus  determined  it,  either 
upon  mere  affidavits  and  the  documentary  evidence  before  him, 
or  upon  the  examination,  and,  of  course,  cross-examination  of 
the  witnesses  taken  before  him  in  open  Court,  in  pursuance  of 
that  36th  section. 

Both  of  these  propositions,  however,  amount  to  the  same  thing ; 
that  is,  that  there  are  questions  in  the  case  which  are  to  be  tried 
in  some  form,  and  further,  that  these  questions  are  questions  of  fact, 
namely,  whether  in  point  of  fact  the  codicil  of  1859,  and  the  will 
of  1 858,  made  the  last  will  of  Mr.  Newton  ?  and  whether  these  were 
afterwards  revoked  ?  These  are  questions  of  fact  arising  out  of  the 
proceedings  in  this  suit.  That  being  so,  and  there  being  these 
questions  arising,  and  necessarily  arising  out  of  the  proceedings, 
the  41st  section  of  the  Probate  Act  declares,  that  "It  shall  be 
lawful  for  the  Court  of  Probate  to  cause  any  question  of  fact, 
arising  in   any  suit  or   proceeding  under  this  Act,  to  be   tried 


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CHANCERY  REPORTS.  249 

by  a  special  or  common  jury  before  the  Court  itself,  or  by  means         1860. 

Ch,  Appeal. 
of  an  issue  to  be  directed  to  any  of  the  Superior  Courts  of  Com- 


mon Law." 

The  Judge  then  is  invested  with  the  power  of  trying  issues 
before  a  jury;  and  here,  upon  inspection  of  the  documents,  and  Judgment, 
having  regard  to  the  very  peculiar  circumstances  of  the  case, 
and  its  great  novelty,  especially  considering  the  number  of  in- 
struments executed,  he  has  thought  it  the  safest  course  to  call 
for  a  jury,  and  have  the  witnesses  examined  before  it.  But  the 
appellant  then  says  the  question  is  not  one  of  fact  at  all ;  it  is 
purely  a  question  of  law  which  is  to  be  tried,  namely,  whether, 
having  regard  to  the  evidence,  even  supposing  it  to  be  at  all 
admissible,  there  is  anything  which  would  amount  to  a  confir- 
mation of  a  previous  will?  or  whether  the  evidence  is  a  mere 
nullity  in  the  case  ?  Again,  as  to  the  revocation  of  these  instru- 
ments, it  is  said  that  this  also  is  a  question  of  law,  or  at  all 
events  that  there  is  not  any  question  of  fact;  that  the  document 
has  not  been  found;  that  it  has  been  traced  into  the  testator's 
possession;  that  its  absence  cannot  be  accounted  for,  and  there- 
fore that  a  presumption  of  fact  arises  that  it  has  been  destroyed. 
Now,  first,  let  me  ask  if  we  can  assume  here  that  such  questions 
of  law  would  be  at  all  tried  by  the  jury,  or  that  the  Judge 
would  not  tell  the  jury  the  conclusion  which  it  would  be  proper 
for  them  to  draw,  from  whatever  state  of  facts  should  be  proved  ? 
That  observation  applies  to  both  issues ;  both  may  be  mere  questions 
of  fact,  or  may  turn  out  to  be  questions  of  fact  and  law  mixed,  so 
that  the  consideration  of  both  must  go  together ;  and  there  might 
be  great  inconvenience  in  having  such  questions  left  to  a  jury: 
but  it  does  not  go  before  a  jury  alone,  it  goes  before  a  jury 
and  a  Judge  who  will  direct  the  jury,  and  we  must  assume  that 
'  every  proper  direction  will  be  given.  If  there  be  any  error  in 
the  mode  of  leaving  the  case  to  the  jury,  we  have  before  us 
several  gentlemen  of  great  ability  who  practise  in  the  Court  of 
Probate,  and  we  have  no  doubt  the  proceedings  will  be  narrowly 
-watched,  and  will  be  put  into  a  shape  which  will  give  an  oppcurtu- 
nity  of  correcting  any  mistake. 

VOL.  11.  32 


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250  CHANCERY  REPORTS. 

I860.  Under  these  circumstances,  are  we,  at  this  stage  of  the  case,  to 

.J^^J^^  say  that  it  is  not  in  the  power  of  the  Judge  of  the  Court  of  Probate 
NEWTON  ^  ^^^^  ^^^^  j^^  would  prefer  having  the  case  investigated  before 
NEWTON,  himself  and  a  jury?  In  my  mind,  such  a  case  is  better  disposed  of  do. 
Judgment,  ^  ^^  °^^  ^V  ^*^  ^^^''^  ^^^  ^^^  ^  something  which,  in  one  view  of 
the  case,  might  appear  to  make  it  premature  now  to  direct  an  issue. 
It  may  be  that  it  would  have  been  better  to  have  had  the  exami- 
nation of  witnesses,  and  then  to  have  the  issue  framed  according 
to  whatever  might  appear  to  be  the  difficulty.  Where,  however, 
the  questions  in  issue  respect  matters  of  fact,  are  we  to  interpose, 
and  say  that  they  are  to  be  tried  in  one  way  only  ?  When  it  is 
said  that  there  is  a  mixed  question  of  law  and  fact,  we  must  re- 
collect that,  were  it  not  for  this  new  tribunal,  the  question  respect- 
ing the  real  estate  which  is  in  litigation  must  have  been  decided 
by  a  jury  on  a  much  wider  issue,  consisting  only  of  a  few  words, 
if  an  issue  was  directed  from  this  Court,  or  without  anything 
whatever  on  record  to  point  to  the  true  question,  if  it  were  tried 
in  an  ejectment. 

I  do  not  now  go  into  the  question  whether  it  will  be  possible 
to  give  evidence  respecting  the  alleged  mistake,  or  tending  to 
show  that  the  testator  thought  he  wan  doing  one  thing  when  he 
did  another ;  but  at  all  events  the  question  of  mistake,  if  it  arises 
at  all,  is  a  question  for  a  jury:  Raworih  v.  Marriott  (a).  Then 
it  is  said  that  there  was  a  plain  revocation  here  by  destruction, 
which  must  be  presumed.  From  the  earliest  times,  however, 
the  animus f  the  intention  with  which  a  testamentary  instrument 
was  destroyed,,  has  been  always  held  to  be  a  question  of  fact. 
Whether  it  was  to  be  decided  on  contemporaneous  acts  and  decla- 
rations, or  whether  it  was  competent  to  go  into  evidence  of  subse- 
quent declarations,  I  do  not  give  any  present  opinion.  But  as  to 
(he  nature  of  the  alleged  mistake,  it  must  be  remembered  that 
Perrott  v.  Perrott  (b)  shows  that  the  doctrine  is  not  necessarily 
confined  to  a  mistake  in  fact,  but  that  a  mistake  in  law  also 
may  render  the  effect  of  cancellation  questionable. 

On  the  whole  case,  therefore,  we  must  affirm  this  order,  seeing 
that  there  are  questions  of  fact  arising  on  the  face  of  the  proceed- 
(fl)  1  M.  &.  K,  648.  (6)  14  East,  440. 


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ibgs,  and  that  it  would  be  very  embarrassiDg  to  the  working  of  the 
Court  of  Probate  if  an  appeal  lay  from  the  Judge,  merely  because 
he  preferred  to  have  an  investigation  in  limine  before  himself  and 
a  jury,  and  we  were  thus  to  deprive"  the  Court  of  the  discretion 
conferred  on  it,  and  to  say,  you  must  proceed  under  the  36th 
section,  you  cannot  proceed  under  the  41st.  We  give  no  opinion 
as  to  the  ulterior  questions;  we  merely  decide  on  the  conduct  of 
the  trial,  and  we  reserve  all  other  points.  It  may  be  that,  when 
the  case  comes  to  a  further  hearing,  other  questions  will  arise; 
but  at  present  we  think  that  we  ought  not  to  take  the  manage- 
ment of  the  case  away  from  the  Judge  to  whom  it  properly 
belongs. 


1860. 
Ch,  AppeaL 

NEWTON 

V, 
NEWTON. 

Judgment. 


The  LoKD  Justice  of  Appeal. 

I  quite  concur  with  my  Lobd  Chancellor  in  the  view  he  has 
taken  of  the  case,  and  in  every  observation  be  has  made  upon  it. 
The  order  appealed  from  was  objected  to  on  several  grounds,  im- 
pugning the  power  of  the  Court  of  Probate  to  submit  to  a  jury  the 
subjects  of  the  issues  it  has  directed ;  but,  on  a  due  consideration 
of  them,  I  think  the  object  of  these  issues  is  the  ascertainment  of 
matters  of  fact,  which,  on  an  issue  devisavii  vel  non^  would  be  ex- 
aminable by  a  jury.  They  are,  whether  a  copy  of  the  codicil  of  the 
16th  of  February  1859  be  a  true  copy  of  it?  Whether  that  codicil, 
with  the  will  of  the  4th  of  February  1858,  which  it  refers  to,  were 
the  will  of  John  Newton,,  at  any  time ;  and  if  they  were,  whether 
they  were  revoked  ? 

Every  one  of  these  inquiries,  and  the*  answers  to  them,  are  mate- 
rial ;  nor  can  I  accede  to  the  objection  that  any  of  them  transfers  to 
the  juiy  matters  of  law,  or  can  give  them  a  greater  latitude  than 
that  with  which  the  law  has  invested  juries  in  trying  the  due  exe- 
cution of  wills  of  real  estate. 

On  such  trials,  questions  constantly  arise  in  which  the  conclu- 
sions to  be  formed  must  be  the  result  not  only  of  the  evidence  of 
matters  of  fact,  but  also  of  the  legal  principles  which  it  is  the 
exclusive  duty  and  province  of  the  Judge  to  state  for  their  govern- 
ment and  their  duty  to  observe  ;  and  there  is,  perhaps,  no  subject  on 


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CHANCERY  REPORTS. 


1860. 
^A.  AppeaL 

y , ' 

HBWTOK 

V. 
NfiWTON. 

Judgment, 


which  the  assiatance  and  control  of  the  Judge  is  so  indispensible  as 
issues  involving  the  revocation  of  testamentary  instruments.  Should 
a  jury  exceed  the  limits  prescribed  to  them,  and  assume  a  right  to 
disregard  the  law  as  propounded  to  them,  they  will  in  this,  as  they 
would  be  in  all  similar  instances,  controlled  and  corrected.  But  we 
cannot  presume,  much  less  act  on,  the  presumption  that  they  will 
exceed  their  province;  and  we  may  rest  assured  that  they  will 
receive  from  the  learned  Judge  such  assistance  as  will  enable  them 
to  fulfil  their  own  peculiar  duty,  without  encroaching  on  his. 

It  did  occur  to  me,  during  the  argument,  that  we  should  have 
had  better,  at  least  more  specific,  grounds  for  the  consideration  of 
the  order,  had  the  case  been  more  fully  investigated,  and  a  cross- 
examination  been  had  of  the  witnesses,  especially  of  Mr.  Johnson. 
But,  considering  that  this  was  a  case  of  an  alleged  disposition  of 
real  property,  by  testamentary  instruments,  and  that  the  Judge 
deemed  the  assistance  of  a  jury  to  be  of  importance,  I  cannot  see 
how  it  is  possible  to  question  his  jurisdiction  to  make  the  order,  or 
control  his  discretion  as  to  the  time  or  stage  of  the  proceedinga  at 
which  it  should  be  made. 

Court  of  Appeal  Hearing  Book  1,  /•  384. 


Nov.  7,  8. 


RICHARD  JAMES  LONG* 


V, 


HILL  GILLMAN  LONG,  MARY  ANNE  FAIRTLOUGH, 

The  Rev.  EDWARD  FAIRTLOUGH,  EDWARD  CONNOLLY 

and  JOHN  HOPKINS. 


In  1806,  L.,     This  case  came  before  the  Court  on  a  petition  of  appeal  from  an 
a  1^  for  lives  order  of  the  Master  of  the  Rolls,  dated  the  9th  of  June  1860,  by 

conyovdd  it  to 

his  ddest  son  J.  for  lifo,  with  remainder  to  X,  the  eldest  son  of  J.    In  1813,  L. 

acqoiied  the  reversion  of  the  renewable  lease,  and  in  1822  conveyed  the  reversion 

*  Coram  the  Lobd  Cbancbllob  and  the  Lord  Jvstice  or  Appbal. 


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which  the  petition  was  dismissed  with  costs,  ifnder  the  circumstances 
following: — By  an  indenture,  dated  the  11th  of  March  1781,  Wil- 
liam Tonson  demised  to  Daniel  Callaghan  the  lands  of  Shanavagh — 
[See  10  Ir.  Chan.  Rep^y  p,  406] — for  three  lives,  with  a  covenant  for 
perpetual  renewal,  on  payment  of  a  fine  of  £6 ;  and  Daniel  Callaghan 
thereby  covenanted  to  pay  the  renewal  fine  within  twelve  months  after 
the  death  of  each  life,  and  in  default  to  pay  a  penalty  of  five  shillings 
like  currency  per  month.     The  reversion  in  fee  of  the  said  premises, 
afterwards,  and  at  the  date  of  the  renewals,  next  stated,  was  vested 
in  William  Lord  Riversdale,  and  the  lease  in  Richard  Long,  great- 
grandfather  of  the   petitioner.     By  indenture,   dated    the  1st  of 
August  1801,  Lord  Riversdale  granted  to  the  said  Richard  Long  a 
renewal  of  said  lease  of  1781 ;  and  by  indenture,  dated  the  19th  of 
April  1808,  a  further  renewal  of  the  said  lease  of  1781,  for  the  lives 
of  William  Swanton,  Catherine  Swanton  and  Robert  Swanton.     In 
1809,  the  lessee's  interest,  under  the  lease  and  renewals,  was  con- 
veyed to  the  use  of  James  Long,  grandfather  of  the  petitioner,  for 
life,  with  remainder  to  the  use  of  his  only  son,  Richard  James  Long, 
the  father  of  the  petitioner,  quasi  in  fee ;  the  said  James  Long  died 
in  the  year  1815,  and  the  said  Richard  James  Long,  his  only  son,  in 
1862.     The  reversion  on  the  lease  and  renewal,  in  the  year  1813, 
became  vested  in  the  said  Richard  Long,  who,  by  indenture,  dated 
the  3rd  of  August  1822,  conveyed  the  said  reversion  to  Richard 
Long  his  son,  in  fee.     Richard  Long  the  son,  in  or  about  the  year 
1833,  died  intestate  and  without  issue,   and   thereupon    the   said 
reversion  vested  in  George,  his  eldest  brother  of  the  whole  blood,  as 


1860. 
Ch,  AppeaL 

*—       V  ■     ■ ' 
LONG 

V. 
LONG. 

StaUmeni^ 


to  R.,  the  eldest  son  of  his  second  marriage.  In  1854,  H.,  the  heir-at-law  of  B., 
filed  a  cause  petition  against  the  executrix  of  X,  to  recover  arrears  of  the  rent 
against  X's  assets.  As  a  defence  to  that  suit,  it  was  alleged  that  L.  was  insane 
wnen  lie  executed  the  conveyance  of  1822.  Li  May  ]857»  H.  senred  a  notice  on 
Y,  the  heir  of  X,  and  also  of  L.,  calling  on  him  to  take  out  a  renewal.  To 
tlds  notice  Y  returned  an  answer,  declining  to  take  out  a  renewal  till  H.'s  right 
was  established  in  the  cause  petition,  but  nominating  lives  to  be  inserted  in  the  next 
renewal,  if  H.  should  establish  his  right,  and  stating  his  readiness  to  pay  into 
Court  the  amount  of  the  renewal  fines,  to  the  credit  of  the  then  pending  petition. 
In  June  1857>  the  Master  made  an  order  establishing  H/s  right  to  the  reyersion,  as 
gainst  the  executrix,  which  was  a£9rmed  on  appeal,  on  the  11th  of  Januaiy  1858. 
^ere  were  some  fiuther  proceedings  in  H.'s  suit  ap  to  November  1858.  In 
December  1858,  Y  tendered  a  renewal  and  fines  to  H.,  and  filed  a  petition  for 
renewal  in  February  1859.— Held,  that  the  tender  was  too  late,  and  that  the  right 
of  a  renewal  was  forfeited. 


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CHANCESY  REPORTS. 


I860. 
Ch,  AppeaL 

LONG 
LONG. 

StatemenL 


heir-at-law,  and^  on  the  death  of  George  Long,  descended  on  Hill 
Gillman  Long,  his  eldest  son  and  heir-at-law.  Richard  Long,  the 
grantor  in  the  deed  of  1822,  at  the  time  of  the  execution  thereof, 
was  odd  and  eccentric  in  his  habits,  and  the  petition  alleged  him  to 
have  been  unreasonable  in  his  language,  unsound  in  his  mind,  and 
considered  by  many  members  of  his  family  incapable  of  managing 
his  affairs  or  making  a  deed.  He  died  some  time  in  the  year  1823, 
leaving  Richard  James  Long,  the  son  of  James  Long,  his  grandson 
and  heir-at-law.  The  said  Richard  James  Long  was  about  twelve 
years  old  at  the  time  of  the  death  of  his  grandfather,  the  said  Richard 
Long,  the  grantor,  and  alleged  to  have  been  ignorant  of  the  deed,  of 
the  circumstances  which  made  that  deed  invalid  or  questionable,  and  of 
his  rights  as  against  that  deed ;  but  he  paid  the  reserved  rent  to  the 
persons  entitled,  under  the  deed  of  1822,  until  the  year  1846,  four- 
teen years  after  he  had  attained  his  age.  In  that  year,  however,  be 
set  up  a  claim  to  the  reversion,  and  never  afterwards  paid  any  rent. 
He  died  in  the  year  1852,  leaving  the  petitioner  his  only  son  and 
heir-at-law,  having  made  his  will,  whereby  he  devised  all  his  estate 
in  the  said  lands  of  Shavanagh  to  the  use  of  the  petitioner,  who  was 
an  infant  at  the  time  of  the  decease  of  his  father,  and  did  not  attain 
his  age  until  the  18th  of  March  1857.  During  the  lifetime  of  Richard 
James  Long,  no  proceedings  ever  were  taken  to  enforce  payment 
of  the  rent  reserved  by  the  lease  of  1781  ;  but  after  his  decease, 
that  is  to  say,  in  May  1853,  George  Long  filed  a  cause  petition, 
claiming  An  arrear  of  rent  as  due  to  him  by  the  said  Richard  James 
Long,  praying  for  the  administration  of  his  real  and  personal  estate, 
and  naming  as  respondents  therein,  amongst  other  parties,  the 
petitioner  and  Ellen  Long,  the  personal  representative  of  the  said 
Richard  James  Long.  The  petitioner  never  appeared  in  the  said 
cause,  nor  was  a  guardian  ad  litem  ever  appointed  for  him  therein. 
George  Long  died  in  1853,  and  the  respondent  Hill  Gillman  Long 
revived  the  said  cause  petition.  Ellen  Long,  as  the  personal 
representative  of  Richard  James  Long,  raised  in  the  cause  peti- 
tion matter  the  question  of  the  validity  of  the  said  deed  of 
August  1822,  and  litigated  the  right  of  Hill  GiUman  Long  to  the 
said  rent. 


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In  1864,  this  cause  petition  having  come  on  to  be  heard  before 
Master  Littpn,  Coansel  on  behalf  of  Ellen  Long  insisted  that  an 
issue  should  be  directed  to  try  the  sanity  of  Richard  Long  at  the 
time  of  the  execution  of  the  grant  of  1822.  The  Master  refused  to 
direct  this  issue ;  and  Ellen  Long  appealed  from  his  order,  which 
was  affirmed  by  the  Master  of  the  Rolls;  on  the  21st  of  November 
1854  (a).  Ellen  Long  subsequently  adduced  evidence  to  show  the 
insanity  of  Richard  Long  the  grantor,  at  the  time  of  the  grant ; 
but  the  Master,  by  his  final  order,  dated  the  16th  of  June  1867, 
declined  to  direct  an  issue  as  to  the  sanity  of  Richard  Long,  and 
declared  the  demand  of  Hill  Gillman  Long  for  the  arrears  of  rent 
well  proved.  By  this  order  he  determined  the  amount  due  for  rent 
to  Hill  Gillman  Long,  including  the  amount  due  up  to  the  last  gale 
day,  and  directed  the  appointment  of  a  receiver  to  raise  the  amount. 
In  order  to  avoid  the  appointment  of  a  receiver,  Mrs.  Long  brought 
into  Court  the  entire  amount  found  due,  and  subsequently  appealed 
from  the  Master's  order.  On  the  7th  of  November  1867>  the  Mas- 
ter of  the  Rolls  made  an  order,  reciting  that  the  question  raised 
before  the  Master  would  arise  in  the  action  which  must  be  brought 
to  recover  the  rent  accrued  since  the  death  of  Richard  James  Long, 
directed  the  further  consideration  of  the  case  to  be  postponed  till 
the  3rd  of  Deceqiber  1867;  and,  in  the  event  of  an  action  being 
brought  on  or  before  that  day,  it  was  ordered  to  stand  over  till  judg- 
ment should  be  obtained  in  that  action.  No  action  was  brought,  and, 
on  the  11th  of  January  1868,  his  Honor  varied  the  Master's  final 
order,  in  relation  to  that  portion  of  the  rent  which  accrued  due  after 
the  death  of  Richard  James  Long,  and  affirmed  the  Master's  order 
in  all  other  respects. 

Subsequently  an  application  was  made  to  the  Master,  by  Hill 
Gillman  Long,  to  have  the  entire  amount  paid  out  to  him,  which 
had  been  brought  in  by  Ellen  Long ;  and  this  application  was 
granted,  upon  the  ground  that  the  rent  accrued  after  the  death  of 
Richard  James  Long  would  bave  been  paid  by  the  receiver,  if  one 
had  been  appointed ;  and  that  the  fund  having  been  brought  in,  to 


1860. 
Ch,  Appeal. 


Statement. 


(a)  See  4  Ir.  Chan.  Bep.  106. 


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1860. 
Ch,  Appeal. 
—     V— ^ 

LONG 
9. 

LONG. 

Statement. 


avoid  the  appointment  of  a  receiver,  must  be  treated  as  if  it  had  been 
ret^eived.  by  a  receiver.  From  this  order  Ellen  Long  appealed ;  but 
it  was  affirmed  by  an  order  made  by  the  Master  of  the  Rolls  in 
November  1858. 

The  petitioner  attained  his  age  on  the  l8th  of  March  1857,  before 
the  Master's  final  order  in  Hill  Gillman  Long's  suit ;  but  during  his 
minority  he  had  sought  to  obtain  evidence  on  behalf  of  Mrs.  Long, 
had  made  an  affidavit  on  her  behalf,  and,  to  some  extent,  acted  as  her 
agent.  Shortly  afler  his  attaining  his  age,  and  in  the  month  of  May 
1857,  a  notice,  signed  by  the  respondent  Hill  Gillman  Long,  was 
served  on  the  petitioner,  directed  to  all  persons  concerned,  requiring 
them  to  renew  the  said  lease,  within  two  months,  and  pay  the  rent, 
renewal  and  septennial  fines.  In  reply  the  petitioner  served  the 
following  notice: — 

*'  SiBr—  la  reply  to  your  notice,  dated  the  15th  instant,  I  have 
to  say,  first,  that  unless  and  until  your  right  to  the  reversion, 
rent  and  fines  therein  mentioned  is  established  in  the  matter  of 
Ijong  V.  Long^  now  pending  in  the  Court  of  Chancery,  I  cannot 
comply  with  your  demand.  Second;  that  I  name  the  lives  of  Her 
Royal  Highness  Louisa  Caroline  Alberta,  His  Royal  Highness 
Arthur  William  Patrick  Albert,  His  Royal  Highness  Leopold 
George  Duncan  Albert,  three  of  the  children  of  Her  Majesty  Queen 
Victoria,  as  the  cestui  que  vies  to  be  named  in  the  next  renewal, 
in  case  you  shall  establish  your  right  to  the  said  reversion. 
Third ;  that  I  am  ready  to  pay  all  fines  mentioned  in  your  said 
notice  into  the  Court  of  Chancery,  to  the  credit  of  the  said 
matter  of  Long  v.  Long,  or  to  trustees  to  be  for  that  purpose 
nominated.  Fourth;  I  require  you  to  inform  me  of  the  amount 
of  fines  claimed  by  you  to  be  due.  Fifth ;  this  notice  is  not  to 
prejudice  the  proceedings  in  Long  v.  Long. 

*'  Dated  this  30th  day  of  May  1857. 

"  R.  J.  Long." 

"  To  Hill  G.  Long,  Esq." 

To  this  the  respondent  did  not  reply ;  and  after  the  appeal  motion 
in  November  1858  was  decided  against  Ellen  Long,  the  petitioner. 


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on  the  30th  of  November  1858,  aeryed  on  the  respondent  Hill  Gill- 
man  Long  a  notice  referring  to  the  notice  of  the  30th  of  May  1857, 
and  requesting  him  to  furnish  particolars  of  the  fines,  interest, 
septennial  fines  and  rent ;  to  which  the  respondent  did  not  reply, 
sETe  by  saying  to  the  person  who  served  it  that  he  would  not  renew. 

In  December  1858,  the  petitioner  caused  a  tender  to  be  made 
to  said  respondent  of  a  draft  renewal  and  rent  and  fines,  which 
he  refused  to  accept;  and  the  petition  was  filed  on  the  7tb 
of  February  1859,  praying  a  renewal  of  the  lease  of  1781.  Hill 
Gillman  Long  answered  the  petition  on  the  28th  of  March  1859. 
The  cause  came  on  to  be  heard  on  pleadings  and  proofs,  on  the 
24th  of  November  1859,  before  the  Master  of  the  Rolls,  when  his 
Honor  was  pleased  io  order  that  the  further  hearing  of  said  cause 
should  stand  over,  and  that  the  said  petition  should  be  amended,  by 
making  Mr.  and  Mrs.  Fairtlough  and  their  trustees  parties.  This 
amendment  was  made  on  the  4th  of  January  1860;  and  the  peti- 
tion matter  having  been  finally  heard  before  his  Honor  the  Master 
of  the  Rolls,  on  the  9th  of  June  I860,  his  Honor  made  a  decree, 
dismissing  the  said  petition  with  costs,  to  be  paid  by  petitioner  to 
said  respondents  Hill  Oillman  Long,  the  Rev.  Edward  Fairtlough 
and  Mary  Annd  his  wife. 

From  this  decisiott  the  present  appeal  was  brought^ 


1860. 
Ch.  Appeal, 


SiMmmU. 


The  AUormy-Gmwrttt^  Mr.  Serjeant  Smllivan^  Mf.  R,  R.  Wmrrm 
and  Mr.  Exha$t^  for  the  appellant. 

The  controversy  in  the  cause  of  Limg  t.  Long  was  a  fair  and  Argummu. 
bona  fide  controversy,  as  to  whether  or  not  Richard  Long,  the 
giasCOi  in  said  deed  of  1822,  waa  of  unsound  mtnd  when  he 
executed  same,  and  pending  said  controversy,  which  was  raised  by 
petitioner's  mother  when  the  petitioner  was  a  minor,  and  not  a 
party  to  the  cause.  It  was  not  reasonable  to  require  him  to  take  out  a 
renewal  from  a  person  whose  right  and  title  to  grant  it  was  dis- 
puted, and  when,  if  such  controversy  was  decided  in  iavoor  of  the 
petitioner's  motiier^  he  would  have  been  himself  entitled  to  the 
ksscnr's  and  lessee's  interest  in  said  original  lease.  The  service  of 
the  notice  to  renew  was  not  done  for  the  purpose  of  compiling  the 
VOL.  11.  38 


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1860. 
Ch,  Appeal, 


Argument. 


pajrment  of  fines,  but  of  inducing  the  petitioner  to  acknowledge  the 
respondent's  title,  and  thus,  in  effect,  to  put  an  end  to  the  question 
raised  in  the  cause  of  Long  r.  Long.  The  service  of  a  notice  under 
the  Tenantry  Act  must  not  be  made  for  an  indirect  purpose.  The 
notice  of  the  30th  of  May  1857  was  a  fair  notice  on  the  petitioner's 
behalf,  and  all  fair  terms  were  offered  by  it,  and  the  petitioner 
offered  to  renew,  and  tendered  the  draft  renewal  and  all  rent  and 
fines,  within  a  reasonable  time  after  the  said  question  in  contro- 
versy in  said  cause  of  Long  v.  Long  had  been  decided  in  the 
respondent's  favour.  Tho  time  tor  renewal  did  not  begin  to  run  till 
after  the  decision  in  Hill  Gillman  Long's  suit.  A  tenant,  bona  fide 
believing  himself  to  be  entitled  to  the  reversion  on  his  lease,  is 
not  bound  to  sacrifice  his  reversionary  interest.  The  old  principle  of 
feudal  law,  forfeiting  a  tenant's  interest  for  claiming  the  reversion, 
does  not  apply  here,  for  it  never  was  a  principle  of  this  Court;  and 
even  if  it  were,  there  was  not  any  disclaimer  on  record.  If  there 
were  two  adverse  claimants  of  the  reversion,  surely  liie  tenant  would 
be  entitled  to  require  them  to  decide  which  was  entitled,  before 
incurring  a  forfeiture,  by  omitting  to  renew ;  does  it  make  any 
difference  that  the  tenant  himself  is  one  of  the  claimants?  The 
petitioner  has  not  been  guilty  of  any  fraudulent  conduct,  or  any  such 
laches,  as  should  disentitle  him  from  obtaining  the  renewal  sought 
by  the  petition.  His  delay  is  fully  and  fairly  accounted  for ;  the 
former  suit  of  Long  v.  Long  did  not  terminate  till  November  1858. 
Up  to  that  time  it  seemed  necessary  for  Hill  Gillman  Long  to  take 
some  steps  to  establish  the  sanity  of  the  grantor  in  the  deed  of  1822. 


Mr.  Brewster,  with  him  Mr.  Serjeant  Lawson  and  Mr.  O^Bwr- 
dan^  for  Hill  Gillman  Long. 

Even  if  a  tenant  can,  after  service  ti  a  notice  to  renew,  dispute 
his  landlord's  title,  without  forfeiting  his  right  of  renewal,  which 
would  be  a  difficult  proposition  to  maintain,  there  has  been  in  this 
case  undue  delay  in  seeking  for  a  renewal.  The  petitioner,  by  his 
own  notice  o^  the  30th  of  May  1857,  staked  his  right  to  the  rever- 
sion on  liie  event  of  Hill  Gillman  Long's  suit ;  and  he  was  bound 
to  be  active  in  seeking  for  a  renewal  as  soon  as  that  was  determined. 


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That  suit  was  successful  on  the  11th  of  January  1858,  yet  the  peti-^ 
tion  here  was  not  filed  for  more  than  a  year  afterwards.  The  sub- 
sequent proceedings  in  that  former  suit  had  nothing  to  do  with  the 
determination  of  the  right  of  Hill  Gillman  Long,  which  was  fully 
established  on  the  11th  of  January  1858.  There  was  very  great 
delay  after  the  service  of  the  notice  of  1857,  and  the  only  excuse 
made  for  it  is  in  itself  a  breach  of  duty  on  the  part  of  the  petitioner. 
In  truth,  the  whole  conduct  of  the  petitioner  was  fraudulent,  for  he 
was  the  real  actor  in  the  former  suit  of  Hill  Gillman  Long,  and  the 
defence  of  Ellen  Long  was  in  truth  and  substance  his. 


1860. 
Ch.  Appeal 

LONG 

V. 
LONG. 

ArgHMent. 


*Mr.  ChaUerton  and  Mr.  J.  P.  Kennsdy^  for  the  respondents 
Fairtlough  and  wife,  and  their  trustees,  were  stopped  by  the  Court. 

The  following  cases  were  mentioned  and  discussed  in  the  course 
of  the  argument:  McDonnell  v.  Burnett  (a)  i  Jackson  v.  Saun^ 
ders(b);  Doe  d.  Phipps  v.  Rolling  {e)  ;  Burton  v.  Fitzsimon  (d) ; 
Woody.  Knox{e)i  Butler  v.  Portarlington  (fj ;  Fitzgerald  v. 
(yConnell(g) ;  Wallace  v.  Patton  (A). 


The  LoBD  Chan CBLLOR. 

In  this  case,  which  has  been  heard  before  us  at  considerable 
length — a  length,  however,  for  which  no  apology  need  be  made, 
I  must  say  that  I  never  have  heard  facts  or  arguments  pressed 
more  earnestly  ;  but,  on  the  whole  case  before  us,  #e  are  of 
opinion  that  we  ought  not  to  disturb  the  order  made  by  his 
Honor  the  Master  of  the  Rolls.  The  case  has  been  very  much 
narrowed  in  argument,  and  has,  I  may  say,  come  to  a  single  point ; 
and  upon  that  point  the  Master  of  the  Rolls  decided  that  an 
unreasonable  time  has  elapsed  Since  a  demand  to  renew  was  made 
upon  the  tenant,  by  a  notice  within  the  provisions  of  the  Tenantry 

(a)  4  Lr.  EqrBep.  216.  (6)  1  Sch.  &  Lef.  455. 

(c)  4  Com.  B.  188.  (d)  Fin.  Ben.  312. 

(e)  3  Ir.  Chan.Bep.  109.  (/)  1  D.  &  War.  20. 

(y)  IJ.  &  L.  134;  S.  C,  6  Lr.  £q.  Bep.  455. 
(A)  1  It.  Eq.  Bep.  338. 


N<w.  8. 
Judgment. 


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1860. 
Ch.  Appeal 

LONG 

9. 
LONG. 


Judgment, 


he  shoald  still  retain  a  right  to  the  benefits  of  the  relation  he  had 
disclaimed.  I  will  not  assert  that  such  a  case  may  not  exist.  I  can 
only  say  that  I  have  been  unable  to  discover  that  any  sach  case  has 
ever  occurred.  I  do  not  think  that  the  present  calls  for  a  decision 
of  the  abstract  point,  when  one  considers  the  real  and  important 
facts  in  the  case,  which  I  shall  now  detail : — The  notice  was  served 
in  May  1857 ;  the  answer  to  it,  which  is  one  of  the  most  material 
documents  in  the  case,  is  as  follows : — '*  Sib — ^In  reply  to  your  notice 
dated  the  15th  instant,  I  have  to  say,  jfirst,  that  unless  and  until 
your  right  to  the  reversion,  rent  and  fines  therein  mentioned  is 
established  in  the  matter  of  Long  v.  Long^  now  pending  in  the 
Court  of  Chancery,  I  cannot  comply  with  your  demand."  Now,  in 
the  first  place,  that  puts  the  petitioner  in  entire  privity,  as  between 
him  and  the  respondent,  with  the  then  pending  cause  of  Long  v. 
Long.  By  that  first  paragraph  he  puts  himself  in  the  position  of  a 
person  who,  pro  bono  et  maioj  takes  with  that,  and  says  he  will 
abide  by  the  decision  in.it  '<If  it  be  determined  in  my  favour,  there 
is  an  end  of  all  question  between  us ;  I  am  entitled  to  hold  the  land 
in  fee-simple ;  but,  if  it  be  decided  in  your  favour,  then  I  will  com- 
ply with  your  demand."  What  was  that  demand  ?  It  was  a  notice 
requiring  the  payment  of  the  fines  within  the  space  of  two  months. 
Now  there  is  no  allegation  that  two  months  did  not  afford  time 
enough  to  ascertain  the  amount ;  that  is  not  the  case  now  made,  and 
it  would  be  unfounded  if  it  were  attempted.  The  petitioner  says 
simply  that  he  will  comply  with  the  respondent's  demand,  whenever 
Long  V.  Long  may  be  decided,  if  such  decision  show  that  he  is 
bound  so  to  do. 

The  next  clause  of  this  document  takes  up  a  position  which  may 
be  good,  or  may  be  bad,  according  as  the  events  may  happen,  by 
naming  the  lives  whom  he  wishes  to  have  inserted  in  the  lease,  in 
case  it  is  to  be  granted ;  and  he  then  alleges  that  he  is  ready  to  pay 
all  fines  into  the  Court  of  Chancery  to  the  credit  of  the  matter  of 
Long  v.  Long:  but  he  only  says  he  is  ready;  he  has  made  no 
attempt,  by  motion  or  otherwise,  to  carry  out  that  readiness ;  and 
then  requires  to  be  informed  of  the  amount  of  fines  claimed  to  be 


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due,  as  to  which  there  is  do  i>reteDce  for  asserting  that  he  was  really 
ignorant,  and  condades  by  saying  that  the  notice  was  not  to  preju- 
dice the  proceedings  in  Long  v.  Long.  It  is  impossible  to  read  that 
notice  without  perceiving  that  it  put  the  petitioner  in  entire  privity 
with  the  former  case  of  lA)ng  v.  Long^  and  that  he  undertakes  to 
abide  by  whatever  shall  be  there  determined  in  that  suit  about  the 
right,  not  merely  as  to  some  particular  gale  of  rent.  When  then  was 
that  right  determined  in  that  suit  ?  Beyond  all  doubt  it  was  deter- 
mined on  the  llth  of  January  1858.  It  is  said  that  something  still 
remained  to  be  done ;  but  it  was  merely  consequential  relief  flowing 
from  the  other  decision.  It  was  merely  a  technical  question  which 
remained  to  be  discussed ;  that  is,  whether,  in  that  suit,  the  peti- 
tioner could  recover  arrears  of  rent  which  accrued  due  after  the 
testator's  decease ;  so  that  the  subsequent  contest  was  purely  techni- 
cal, while  the  general  right  had  been  decided  before.  But  the 
petitioner  was  not  yet  contented  or  prepared  to  abide  by  the  decision 
in  Long  v.  Long;  and  he  continued  to  refuse  payment.  Even  here 
it  was  argued  that  the  intention  of  that  contest  was  to  put  the 
respondent  to  an  ejectment,  or  a  Common  Law  action  to  recover 
those  arrears — in  point  of  fact  to  compel  him  to  raise  every  question 
which  had  been  decided  in  Long  v.  Long^  the  cause  by  the  result  of 
which  the  petitioner  had  in  his  notice  undertaken  to  abide.  Under 
these  circumstances,  it  appears  to  me  that  the  litigation,  after  the 
llth  of  January  1858,  was  not  bona  fide;  that,  whatever  the  char- 
acter of  that  litigation  may  previously  have  been,  there  was  no 
sound  reason  for  delay  after  that  date,  and  that  the  decision  of  the 
Master  of  the  Rolls  was  consequently  right,  and  must  be  affirmed. 


I860. 
Ch,  Appeal, 

LONG 
LONG. 

Judgwkent. 


The  Lord  Justice  of  Appeal. 

I  entirely  concur  with  my  Lord  Chahcellob  in  the  opinion 
that  the  petition  of  appeal  in  this  case  must  be  refused.  It  is  unne- 
cessary for  me  to  go  through  the  facts  of  the  case,  which  have  been 
already  so  fully  stated.  I  shall  shortly  state  the  ground  of  my  opi- 
nion, that  the  decree  of  the  Master  of  the  Rolls  was  right.  In  a  suit 
of  this  kind,  for  the  speciflc  execution  of  a  covenant  for  perpetual 


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186a 
Ch.  Appeal 


renewal,  the  right  must  be  groiinded  on  an  admission  of  the  title  of 
the  defendant.  The  claim  of  the  tenant  can  onlj  be  based  on  the 
fall  power  of  the  landlord  to  grant  the  estate  sought  for.  It  is, 
therefore,  indispensably  necessary  for  the  tenant  to  admit  the  land- 
lord's title  in  its  entirety,  and  in  the  most  unequivocal  manner.  He 
cannot,  in  such  a  suit,  contest  a' right  on  the  admission  of  which  his 
own  is  wholly  founded.  It  would  be,  in  my  opinion,  a  plain  viola- 
tion of  this  pnnciple  to  allow  him  to  allege  or  plead  as  a  justification 
in  excuse  for  the  delay,  in  its  nature  fatal  to  his  case,  a  litigation  in 
which  he  had  unjustly  and  unsuccessfully  contested  the  very  title 
the  admission  of  which  is  the  indisputable  condition  of  the  relief  he 
seeks  for. 

Court  of  Appeal  Hearing  Book^  1,/.  383.     . 


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1860. 
CkoMenf* 


KNOX  tr.  MAYO. 
(In  Chancery). 


Nw.  14. 


This  case  came  before  the  Court  on  a  return  to  a  writ  of  partition,  The  respond- 

ent  in  a  pftrti- 
and  the  further  directions  reserved  on  the  former  hearing,  at  which  tion   suit 

costs  also  were  reserved.    The  case  is  reported  supra^  vol  7,  p.  563.  petitioner's 

daim,  alleging 
that  the  peti- 

Mr.  Henry  H.  Hamilton  and  Mr.  Carleton,  for  the  petitioner,  ^^^"^y 
contended  that  the  respondent,  Lord  Majo,  ought  to  pay  to  the  PJ^^^  ^^  ^^ 

petitioner  the  costs  occasioned  by  his  having  disputed  the  peti-  ^^^     Conn. 

derahle  ex- 
tioner's  title.  The  respondent  had  occasioned  considerable  additional  penM  was  thos 

imposed  on 
expense  at  the  hearing,  and  in  the  preparation  of  the  case.     In  the  the  petitioner; 

*  but   that  ex- 

Court  of  Appeal,  the  costs  of  the  appeal  had  been  awarded  against  pense  was  en- 
Lord  Mayo.  It  was  settled  that  a  respondent  who  litigated  the  before  and  at 
petitioner's  title  in  a  partition  suit  might  be  compelled  to  pay  the  -jA^  ^^  ^^ 
costo  occasioned  by  such  litigation:  Lyne  v.  Lyne(a)i  Hill  v.  pa,!^^^  ^ 
Fullbrooke  (b) ;  Morris  v.  Timmin*  (c).  St^l2S^^" 

and   costs  re- 

serred.  At  the 
Mr.  Serjeant  Lawson  and  Mr.  Todd^  contra.  hearing  on  the 

retnm  to  the 
The  rule  respecting  costs  in  a  partition  suit  is  well  settled.   Each  writ  of  partis 

tition  and  far- 
party  must  bear  his  own  costs  up  to  the  first  hearing,  and  the  subse-  ther  directions 

qnent  costs  must  be  borne  rateably.  The  cases  cited  only  show  that  the  petitioner 

any  expense  not  a  portion  of  the  costs  of  preparing  for  the  first  hear-  ^^  ^  y^  ^l^ 

ing,  occasioned  by  one  of  the  parties,  may  be  thrown  upon  him.    In  ^^  ^iljy^^ 

Lyne  v.  Lyne^   the  defendant  had  insisted  on  having  an  inquiry  ^|?    ^^J!^^a 

directed  at  the  first  hearing.     In  Morris  v.  Timmins.  the  case  was  including   the 

first  hearing. 

properly  one  of  specific  performance,  and  the  xmrtition  relief  merely        

Arguments 
incidental    In  Hill  v.  Fullbrooke^  the  costs  which  the  defendant 

was  obliged  to  pay  were  'those  of  an  account  directed  at  the  first 

(a)  21  Beay.  318.  (6)  Jac  574. 

(c)  1  Beay.  411. 
VOL.11.  34 


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CHANCERY  BBPORTS. 


1860. 
Chancery, 


Argument 


hearing,  in  consequence  of  his  resisting  the  plaintiff's  claim.  Here» 
the  only  additional  costs  subsequent  to  the  first  hearing  were  those 
of  the  appeal,  which  we  were  directed  to  pay.  Even  if  a  case  oonld 
at  all  be  made  for  giving  extra  costs  to  the  petitioner,  the  direction 
for  so  doing  must  be  given  at  the  first  hearing,  when  the  Judge  has 
all  the  facts  before  him. 


Judgment.  The  LoBD  ChavceiXob  said  that  he  saw  no  reason  to  depart 

fi*om  the  usual  rule  as  to  costs  in  partition  suits.    Uader  any  cir- 
cumstances the  petitioner  must  have  proved  his  title. 

General  Hearing  Book^  26,  /.  288« 


A  judgment 
reooyered  in 
1819,    and 
never   revived 
QOf  re-do(diet- 
ctd,  must  be 
postponed  not 
onlj  to  the 
gales  of  a 
rentcharge 
created  by 
the  jnd^ent 
debtor    in 
I827»  and  as- 
signed in  1Q41, 
whidi  accmed 
due  after  that 
period,  but  to 
the  arrears  of 
it  which  were 
then  due,  an4 
wbich  were 
Included  in  the 
assignment. 

Statement. 


WALCOTT  tr.  SMYTH- 

This  cause  came  before  the  Court  upon  exceptions  taken  by  William 
CDell  to  the  Master's  report,  under  a  decree,  dated  the  21st  of 
November  1842,  by  which  it  was  referred  to  him  to  take  an  accoonl 
of  the  sums  remaining  due  to  the  plaintifis  on  foot  of  their  saveral 
demands,  and  an  account  of  the  real  and  personal  estate  of  William 
Smyth,  deceased,  and  of  all  charges  and  ineumbranoes  affecting  the 
same.  ^ 

The  Master,  by  his  report,  filed  on  the  2nd  of  July  1860,  found,, 
amongst  other  things,  that  by  deed,  bearing  date  the  1st  day  of 
August  1827,  and  made  between  the  said  William  Smyth,  of  the 
first  part,  John  Walcott,  of  the  second  part,  Samuel  Walcott,  of  the 
third  part,  Thomas  Lyons  Walcott,  of  the  fourth  part,  and  Edward 
Wright  Seymour,  of  the  fifih  part,  the  said  William  Smyth,  in  oon- 
sideration  of  £950,  granted  unto  the  said  Thomas  Lyons  Walcott  an 
annuity  or  yearly  rentcharge  of  £120.  10s.  6d.,  charged  upon  the 
lands  in  the  decree  mentioned,  for  the  life  of  one  Thomas  Bramll, 
and  to  be  payable  half-yearly,  on  the  24th  day  of  June  and  the  24th 
day  of  December ;  and  that  thereby  also  a  term  of  ninety-nine  years 


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in  the  said  lands  was  created  and  vested  in  Edward  Wright  Sej- 
moor,  for  secaring  the  same.     The  Master  also  found  that,  by  an 
indenture,   bearing  date  the    15th  day  of  July   1841,  and   made 
between  Samuel  Walcott,  of  the  first  part,  W.  H.  L.  Walcott,  of 
the  second  part,  Mincbin  Walcott,  of  the  third  part,  Anne  Walcott^ 
executrix  of  the  said  Thomas  Lyons  Walcott,  of  the  fourth  part, 
and  John  Crossley  Seymour,  of  the  fifth  part,  in  consideration  of 
£1250,  the  said  annuity,  and  all  arrears  thereof,  and  a  judgment 
collateral  thefewith,  were  assigned  by  Samuel  Walcott  and  Anne 
Walcott  to  John  Crossley  Seympur,  by  way  of  mortgage.     And  the 
Master,  by  his  report,  also  found  that  the  said  Thomas  Brazill,  the 
cestui  que  vie  of  the  annuity,  died  about  the  24th  of  December  1841, 
and  that  at  his  death  £1113  remained  due  on  foot  of  the  annuity ; 
£1053.  Is.  Id.  due  before  the  deed  of  July  1841,  and  £60  sub- 
sequently.    The  Master  further  found  that  a  judgment  for  £660, 
obtained  in  Hilary  Term  1819,  against  William  Smyth,  and  vested 
in  the  said  William  0*Dell,  not  having  been  revived  or  re-docketed, 
was  the  twenty-fourth  charge  on  the  lands,  and  should  be  postponed 
to  the  arrears  of  annuity  assigned  in  mortgage  by  the  said  deed  of 
the  15th  of  July  1641. 

To  this  report  William  O^Dell  filed  several  exceptions.  The  first ; 
that  tko  judgment  of  Hilary  Term  1819  should  have  been  found  to 
be  the  third  charge  on  the  lands.  The  second;  that  the  Mas- 
ter should  have  reported  that  the  annuity  ceased  on  the  death  of 
Thomas  Brasill,  and  that  the  arrears  thereof  were  a  charge  on  the 
lands  only  for  the  term  of  ninety-nine  years,  vested  in  Edward 
Wright  Seymour ;  and  that,  inasmuch  as  said  term  was  not  assigned 
by  the  deed  of  1841,  the  judgment  of  Hilary  Term  1819  was  a 
charge  on  the  lands  prior  to  the  annuity,  and  to  all  other  charges, 
save  No.  I  and  No.  2. .  The  third ;  that  only  the  arrears  of  antiuity 
which  accrued  due  subsequent  to  the  deed  of  July  1841  should  have 
been  reported  prior  to  the  judgment  of  Hilary  Term  1819.  The 
fourth;  that,  inasmuch  as  the  deed  of  1841  was  executed /i«iu20ii/« 
lite^  it  could  not  operate  to  postpone  the  judgment  of  Hilary  Term 
1819. 

The  other  exceptions  were  not  material 


1860. 
Chancery* 


Statement. 


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1860. 
Chancery, 

^ , f 

WAI.COTT 

O. 

SMTTH. 

Argument. 


Mr.  F.  W.  Walsh  and  Mr.  PaUes^  in  support  of  the  exceptions. 

The  deed  of  1841  cannot  in  this  case  give  any  higher  right  to 
the  assignee  than  the  original  annuitant  had.  It  is  true  that,  upon 
another  portion  of  this  very  deed,  it  was  decided  in  WalcoU  v.  Con' 
don  (a),  that  a  sub-mortgagee  is  entitled  to  the  benefit  of  the  Re- 
docketing  Act,  although  the  original  mortgagee  may  not  be  in  a  posi- 
tion to  set  it  up.  This,  however,  is  quite  a  different  case.  What  was 
de  facto  assigned  here  was  not  an  estate  or  interest  in  the  land, 
but  a  mere  right  of  suit  for  the  arrears  of  annuity  which  had 
then  accrued  due.  It  might  have  been  very  different  if  the  term 
had  been  assigned  to  secure  the  arrears;  then  there  would  have 
been  an  estate  in  the  land,  but  the  arrears  of  a  rentcharge  can- 
not be  so  described.  Malcolms  v.  Charlesworth  {h)  goes  further 
than  is  required  to  support  those  exceptions ;  for  it  shows  that 
an  assignment  of  a  legacy  charged  on  land  is  not  affected  by  the 
English  Registry  Act;  and  though  the  applicabih'ty  of  that  case 
to  the  more  stringent  Registry  Acts  of  this  country  has  been 
questioned,  there  seems  no  reason  to  believe  that  its  authority  is 
shaken  in  England.  Then  the  words  of  the  Re-docketing  Act 
are  not  so  strong  as  those  of  the  Irish  Registration  Act ;  and  thus, 
assuming  WalcoU  v.  Condon  to  be  law,  the  present  case  is  quite 
distinguishable.  The  annuity  here  was  purchased  pendents 
Ikcj  and  can  give  no  higher  title  than  the  assignor  had:  Hunter  v. 
Kennedy  (c);  Murtagh  v.  TisdaU{d)\  BenneU  y.  Bernard  {e)v 
Bellamy  v.  Sabine  (f). 


Judgment. 


Mr.  /?.  R.  Warren^  contra,  was  stopped  by  the  Court,  having 
mentioned  Low^s  Estate  {g). 

The  LoBO  Chancbixor. 

I  think  that  Mr.  Seymour  is  entitled  to  the  benefit  of  the  pro- 
visions  of  the  Re-docketing  Act.     The  only  question  really  is. 


(a)  3  It.  Chan.  Bep.  1. 
(c)  1  Ir.  Chan.  Bep.  148. 
<«)  10  Ir.  Eq.  Bep.  584. 


(6)  1  Eee.  65. 

((Q  3  Ir.  Eq.  Bep.  85. 

00  IDeG.  &J.  566. 


is)  4  Ir.  Chan.  Bep.  97. 


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whether  the  arrears  of  the  annuity  can  be  said  to  be  a  right, 
title,  estate,  or  interest  in  Und  ?  and  it  would  be  very  difficult  to 
assert  that  they  cannot  be  so  described.  The  case  of  Walcott  v. 
Condon  (a)  was  decided  by  Lord  Chancellor  Blackbume  on  this 
very  deed  of  the  15th  of  July  1841,  which  comprised  not  only 
the  annuity  of  1827>  but  a  mortgage  of  1825 ;  and  his  Lordship 
there  held  that  Mr.  Seymour  was,  as  assignee  of  the  mortgage, 
entitled  to  the  benefit  of  the  Act,  as  between  him  and  the  judg* 
ment  creditor  of  the  mortgagor,  though  Walcott,  the  immediate 
mortgagee,  would  not  have  been.  I  cannot  distinguish  the  pre- 
sent case  from  Walcott  v.  Condon.  Here  there  is  the  grant  of  a 
rentcharge,  a  perfectly  legal  grant  The  arrears  also  remain  a 
legal  demand  upon  the  land,  secured  by  the  term,  which,  to  be 
sure,  was  not  assigned  by  the  deed ;  but  the  trustee  of  the  term 
is  trustee  for  the  true<  owner  of  the  arrears,  and,  if  the  assignee 
be  the  true  owner,  he  is  a  trustee  for  him.  I  cannot  distinguish 
this  from  the  case  of  the  mortgage ;  but  Mr.  O'Dell  can,  if  so 
advised,  raise  the  general  question  by  appeal.  I  think  the  Master^s 
report  right,  and  founded  upon  right  principles ;  and  I  must,  there- 
fore, overrule  the  exceptions,  with  costs. 

(a)  3  Lr.  Chaa.  Bep.  1. 

jReg.  Lib.,  26,  /.  303. 


1860. 


JudgmmU. 


ADAMS  r.  GAMBLE. 

This  case  came  before  the  Court  upon  a  cause  petition,  and  answer<» 
ing  affidavits,  under  the  circumstances  following. 

By  a  lease  dated  the  1 0th  of  April  1791,  the  lands  of  Anticor 
were  demised  to  John  Adams,  for  three  lives  renewable  for  even 
John  Adams  made  his  will,,  dated  the  26th  day  of  February  1799) 
which  contained  the  following  devise : — *'  I  also  leave  and  bequeath 
to  my  daughter  Isabella  Adams  the  leases  of  all  the  lands  which  I 


the.  3. 


of 


An  estate 
dMcendible 
freehold,  fet- 
tled to    the 
leparate   use 
of  a  married 
woman,    can* 
dot  be  TaUdly 
convejed  by 
her  without 
fine  or  statote 
deed. 


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CHANCBRT  REPORTS. 


I860. 


now  ppsBeM,  to  her,  to  have  and  to  hold,  enjoy  and  possess,  and  to 
her  heirs  and  assigns  for  ever,  reserving  it  in  her  own  power  from 
any  kosband  or  husbands  which  she  shall  marry  or  be  married  to.''. 
John  Adams  died  shortly  after  the  date  of  his  said  will ;  and  in  1801 
Isabella  Adams  intermarried  with  one  James  Gamble ;  there  was  no 
issue  of  that  marriage ;  and  in  1842  Isabella  Gamble  died,  leaving 
her  husband  her  surviving.     By  an  indenture  dated  the  30th  of 
April  1822,  and  niade  between  Sarah  Leslie  of  the  one  part,  and 
the  said  James  Gamble  and  Isabella  Adams  his  wife,  of  the  other 
part,  the  lease  of  the  said  lands  of  Anticor  was  renewed  to  the  said 
James  Gamble  and  Isabella  his  wife,  for  three  additional  lives,^  to 
hold  the  same  to  the  use  of  the  said  Jaroes  Gramble  for  life,  and, 
from  and  after  bis  decease,  to  the  use  of  such  person  or  persons  as 
the  said  Isabella  should  by  deed  or  will  appoint ;  in  default  of  ap- 
pointment, to  the  use  of  the  said  Isabella,  •  her  heirs  and  assigns. 
By  de^  dated  the  23rd  day  of  May  1835,   and  made  between 
the  said)  Isabella  Adams,  otherwise  tjhim'ble,  of  the  one  part,  and 
thie  said  James  Gamble  of  the  other  part,  the  said  Isabella  pro- 
fessed to  convey  the  lands  of  Anticor  to  the  said  James  Gamble. 
James  Gamble  died  in  1858,  having  devised  his  interest  in  the 
said  lands  to  the  respondent.    The  present  petition  was  filed  by 
the  heir-at-law  of  Isabella  Adams,  and  prayed  that  the  renewal  to 
James  and  Isabella  Gamble  might  be  declared  a  trust  for  him ; 
and  for  a  conveyance  of  the  lands  comprised  in  it. 


Mr.  J,  E,  Walsh  and  Mr.  Harrison^  for  the  petitioner. 
Argument,  The  only  question  in  this  case  is  respecting  an  estate  of  freehold, 

settled  to  the  separate  use  of  a  married  woman,  whether  she  can 
dispose  of  it  as  if  she  were  B,feme  sole  f  The  earliest  case  on  the 
subject  is  Churchill  v.  Dibben  (a),  where  the  question  was  as  to 
lands  purchased  by  the  wife  with  personal  estate  which  was  her 
absolute  separate  property,  and  which  she  was  held  not  to  be  able  to 
deal  with  as  if  she  were  a  feme  sole.  The  analogy  of  legal  estates 
was  also  applied  in  the  case  of  Peacoch  v.  Moneh(6}.    The  readoa 


(a)  2  Ken.,  pt  2,  85 ;  S.  C,  9  Sim.  447,  n.  (5)  2  Yes. 


192. 


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of  the  disUnolioQ  between  realty  and  personalty  in  this  respect  is, 
that  it  js  only  the  marital  right  of  the  husband  which  the  separate 
Qse  is  intended  to  exclude.  It  does  not  otherwise  modify  the  nature 
of  the  wife's  property ;  so  she  can  dispose  of  chattel  property,  in  which 
only  she  herself  and  her  husband  are  interested ;  but  in  the  case  of 
realty,  the  heir  has  a  title  which  can  only  be  defeated  by  fine  or 
statute  deed.  That  is  the  scope  of  the  old  authorities,  and  they  are 
followed  in  the  very  reoent  cases  of  Harris  v.  Moii  (a) ;  Neweomen  v. 
ffassard(b);  Moore  v.  Morris  (e).  Lassence  v.  Tiemey{d)y  and 
Field  y.  Moore  («),  show  that  in  no  case  will  the  law  dispense  with 
the  formalities  imposed  by  statute  on  the  disposal  of  an  estate  by  a 
married  woman :  Goodiil  v.  Bingham  (f)  ;  Doe  d.  Siepkems  v. 
SeoU  {g).  If  a  woman  has  a  separate  estate,  with  an  express  power 
in  addition,  she  can  dispose  of  the  property  by  the  aid  of  the  power ; 
but  otherwise  she  cannot,  if  it  be  held  for  any  greater  interest  than 
her  own  life.  Baggott  v.  Meux(h)  only  shows  that  a  married 
woman  can  have  separate  interest  in  fee-simple  estate. 


I860. 

V-— V ' 

ADAMS 

V. 

OAKBLB. 

ArgmmwU 


Mr.  Hugh  Law  and  Mr.  May^  contra. 

It  is  now  the  settled  law  of  this  Court,  that  a  woman,  if  not 
expressly  restrained  from  anticipation,  can  dispose  of  all  property 
settled  to  her  separate  use,  as  if  she  were  a  feme  sole.  That  has 
been  constantly  held  here,  from  the  decision  of  Grigby  v.  Cox  (t), 
and  Pyhus  v.  Smith  {k\  to  the  present  time ;  and  Tulleti  v.  Arm^ 
strong  has  at  last  settled  the  doctrine  respecting  restrictions  or 
anticipations  upon  a  rational  and  intelligible  basis.  Wilcox  v. 
Hannyngton  (/)  is  an  express  decision  on  the  power  of  a  married 
woman  to  bind  her  separate  fee-simple  estate,  and  is,  therefore, 

(a)  14  Beay.  169.  (h)  4  Ir.  Chan.  Bep.  268. 

(c)  4  Drew.  33.  (rf)  2  H.  &  Tw.  115. 

{€)  19  Beay.  134 ;  S.  C,  2  Jnr.,  N.  S.,  150. 
09  I  B.  &  P.  192. 
{g)  4  Bing.  506;  8.  C,  2  Moo.  &  P.  317. 

<A)  1  CoU.  138 ;  S.  C.  1  PhiL  627-  * 

(0  1  Vw.  sen.  517.  (A)  1  Vo«.  j^m.  195. 

(0  5  Ie>  Chan.  Bsp.  38. 


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CHANCERY  REPORTS. 


1860. 
Chaneery> 


Argument, 


even  a  stronger  case  than  the  present,  where  the  claimant  b 
merely  a  special  occapant.  Wright  v.  Cadogan  (a),  Rippon  v. 
Dawding{b)f  are  also  express  authorities  for  the  respondent,  the 
devise  of  a  woman  seised  of  separate  estate  haying  been  established 
against  her  heir:  Major  v.  Lansleg{c).  In  Power  ▼•  Bailey  {d)^ 
an  annnitj  granted  by  a  married  woman  out  of  her  separate  estate 
was  established.  Bagot  v.  Meux  («)  carries  the  respondent's  case 
the  entire  way ;  for  if  it  is  necessary  to  insert  a  condition  against 
alienation  in  a  settlement  of  real  estate,  and  if  it  can  have  any  effect, 
what  is  the  distinction  between  separate  interest  in  realty  and  per- 
sonalty?  The  distinction  taken  between  realty  and  personalty  is 
unfounded.  The  Court  of  Equity  regards  the  interest  of  the  wife 
more  than  that  of  the  heir. 


Dee.  3. 


The  Lord  Chancellor. 

The  petition  in  this  case  has  been  filed  in  order  to  establish  the 
petitioner's  right  to  certain  lands,  which  were  devised  by  John 
Adams  to  his  daughter  Isabella  Adams,  *'  to  have,  hold,  enjoy 
and  possess,  and  to  her  heirs  and  assigns  for  ever,  reserving 
it  in  her  own  power  from  any  husband  or  husbands  whom  she 
should  marry."  The  petitioner  claims  to  be  heir-at-law  of  Isabella 
Adams.  The  respondent  relies  upon  a  deed  executed  by  her  during 
her  coverture ;  and  he  submits  that  by  this  she  had  conveyed  the 
estate  which  she  held  in  quasi  fee;  and  that,  consequently,  the 
heir  is  barred.  Thus,  the  question  has  been  raised,  and  discussed  at 
the  hearing  very  fully,  whether  a  married  woman  having  property 
in  fee,  settled  to  her  separate  use,  but  not  subject  to  any  special 
power  of  appointment,  could,  by  an  instrument  not  acknowledged 
under  the  statute,  convey  it  so  as  to  defeat  her  heir  ?  The  petitioner 
contends  that,  according  to  well  established  doctrines  of  law,  she 
could  not  do  so.  The  respondent,  on  the  other  hand,  says  that 
such  never  was  the  law,  or  that,  if  it  ever  was,  the  course  of 
modem  decisions  has  been  to  the  contrary. 

(a)  1  B.  P.  C.  486.  (b)  Amb.  505. 

(e)  2B.&M.365.  (</)  1  B.  &.  B.  40. 

(e)  1  CoU.  138;  S.  C,  on  Appeal,  1  Fh.  627. 


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I  have  exaipined  all  the  decisions,  and  I  must  say  that  I  have 
been  unable  to  find  any  authority  which  affirms  the  proposition  that 
a  married  woman  so  circumstanced  can  dispose  of  the  estate,  other* 
wise  than  by  fine  or  statutory  deed.      The  current  of  authorities 
and  opinions,  as  shown  by  the  text-books  and  the  dicta  of  Judges, 
is  almost  uniformly  to  the  contrary;  and  there  is  not  even  a  dic- 
tum of  modern  date  in  its  favour.      Tl\e  first  authority  distinctly 
in  point  is  the  anonymous  case  cited  in  Peacock  v.  JtfonA(a),  and 
it  is  almost  an  express  decision  on  this  case.      It  was  a  case  in 
which  real  estate  of  a  wife  was  secured  to  her  separate  use  by  a 
settlement  executed  before  her  marriage,  which  did  not  contain 
any  power  of  devising  it;  and  it  was  determined   that  her  will 
was  void  as  to  this  real  estate,  and  that  the  estate  must  go  to  her 
heir-at-law.     The  distinction  is  taken  in  Peacock  v.  Monkj  that 
she  can   dispose  of  an  estate  so  limited,  if  she  has  also  an  ex- 
press power  given  to  her  by  the  settlement,  either  by  way  of 
trust,  or  of  power  over   a   use.      In  Churchill  v.  Dibben(b)^  it 
was  held  that  a  married  woman  having  real  property  settled  to 
her  separate  use,  out  of  the  savings  of  which  she  purchased  other 
real  estate,  which  would  of  course  be  also  held  for  her  own  sepa- 
rate use,   was.  not  entitled    to   dispose    of   this  newly  acquired 
property.    It  seems  to  me  that  these  authorities  proceed  on  the 
very  point  and  decide  it,  unless  they  have  themselves  been  over- 
ruled by  subsequent  cases. 

The  doctrine  of  Courts  of  Equity,  in  relation  to  a  wife's  separate 
estate,  is  founded  on  this,  that  they  will  protect  the  wife's  separate 
property  from  the  power  of  the  husband ;  but  the  husband  never 
could  dispose  of  the  wife's  fee-simple  property  without  her  concur- 
rence, beyond  his  life  interest ;  and,  therefore,  the  reason  and 
principle  of  the  dicta  and  decisions  respecting  separate  estate  have 
BO  application  to  property  of  which  the  wife  is  seised  in  fee.  That 
reason  and  that  principle  are  given  with  accuracy  in  Tullett  ▼. 
Armstrong  (c) : — '*  The  estate  for  separate  use,  as  sanctioned  by 

(a)  2  Ves.  192. 
(6)  2  Lord  Kenyon,  pt.  2,  p.  85;  S.  C,  9  Sim.  447,  n. 
(g)  1  Beav.  1 ;  t;u(e  p.  22. 
VOL.  11.  35 


1860. 
Chancery, 

' . ' 

ADAMS 

r. 

GAMBLE. 

Judgment. 


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CHANCERY  REPORTS. 


I860.        Courts  of  Equity,  has  its  peculiar  existence  only  in  the  married 
Chancery. 

State.    It  operates  as  a  protection  to  a  married  woman,  agunst  the 

legal  power  over  a  wife's  property,  which  is  vested  in  her  husband ; 
it  acts  in  contravention  and  control  of  the  legal  right  of  the  hus- 
'^udgmaii,  htJi^ ;  and,  as  against  his  legal  power,  it  is  a  sufficient  protection ; 
but  the  power  of  alienation  remaining  in  the  wife,  the  separate 
estate  unfettered  is  no  protection  against  the  moral  influence  of  the 
husband."  Now,  it  will  be  observed,  that  that  passage  has  no 
application  to  the  destination  of  the  property  after  the  death  of  the 
wife.  Another  case  was  referred  to — Harris  ▼•  MoU{a\  which, 
although  not  an  express  decision  of  the  point,  goes  in  the  same 
direction ;  it  was  the  case  of  an  estate  in  fee  devised  to  9k  feme  covert 
for  her  separate  use.  She  entered  into  a  contract  for  sale,  and  died, 
having  devised  the  estate  to  her  husband,  who  sued  the  purchaser 
for  specific  performance,  which  the  Court  refused  to  decree,  think- 
ing the  case  too  doubtful  to  enforce  the  title  upon  a  purchaser.  So 
far  as  that  case  goes,  it  is  in  confirmation  of  the  doctrine  laid  down 
in  the  earlier  cases.  Then  in  this  country  we  have  the  observations 
made  in  Neweomen  v.  Hassard{b)^  by  the  Master  of  the  Rolls,  who 
says : — '*  The  only  case,  of  which  I  am  aware,  in  which  ^feme  covert 
to  whom  real  estate  is  conveyed  or  devised,  for  hev  separate  use, 
was  obliged,  before  the  statute,  to  convey  her  estate  by  a  fine,  was, 
where  she  was  seised  in  fee ;  and,  in  such  case,  it  has  been  consi- 
dered that,  to  bind  her  heir,  she  should  levy  a  fine,  and  be  examined ; 
and,  since  the  Statute  for  the  Abolition  of  Fines  and  Recoveries,  the 
provisions  of  the  sections  referred  to  should,  I  apprehend,  be  com- 
plied with;"  and  then  he  goes  on  to  say  that  the  doctrine  is 
otherwise  as  to  estates  in  lands  of  which  she  is  seised  for  life  only, 
to  her  separate  use.  In  the  case  of  Morris  v.  Morris  (c),  befi>re 
Vice-chancellor  Kindersley,  he  says  that — <'  An  absolute  gifk  of 
personalty,  to  the  separate  use  of  a  married  woman,  gives  her  the 
power  to  deal  with  it,  independently  of  her  husband,  either  by  deed 
or  win,  which  is  not  the  case  with  respect  to  fee-simple  and  real 
estate.'^    I  may  next  mention  2  Roper ^  Husband  and  Wife,  p.  186, 


(a)  14  Beav.  169. 


(6)  4  Ir.  Chan.  Rep.  274. 


(c)  4  Drew.  38. 


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where  it  ia  8aid  that — *'  A  limitation  of  real  estlite  to  the  wife  in 
fee,  for  her  sole  and  separate  use,  without  more,  will  not  enable  her 
to  dispose  of  it  during  the  manriage,  otherwise  than  by  fine  and 
recoTery ;  because  no  power  having  been  given  to  her  by  the  instru- 
ment to  make  any  disposition  of  the  property,  she  can  only  do  so  by 
the  mode  prescribed  by  law  ;  and,  if  she  omit  to  do  so,  her  heir  will 
take  the  estate."  Doe  d.  Siepkens  v.  Scoti  (a)  is  a  clear  authority 
to  the  same  effect,  so  far'  as  a  Court  of  Law  is  concerned.  Thus,  as 
I  have  said,  the  current  of  authcurity  is  all  the  same  way,  respecting 
the  power  of  a  married  woman  over  her  real  estate  in  fee-simple, 
without  levying  a  fine,  or  executing  a  deed  under  the  statute- 
There  are,  to  be  sure,  general  expressions  respecting  the  powers  of 
femes  ecvert  over  property  settled  to  their  separate  use ;  but,  when 
they  come  to  be  examined,  they  are  found  to  relate  either  to  perso- 
nal property,  to  estates  for  life,  or  to  the  operation  of  deeds  during 
the  life  of  the  woman,  or  to  cases  where  there  was  a  specific  power 
added  to  the  limitation.  Such  are  the  cases  referred  to  in  the  note 
to  the  general  statement  in  1  Sugden  on  Powers^  p.  206^  where  the 
writer  says : — *^  When  a  married  woman  has  property  settled  to  her 
separate  use,  without  any  restraint  on  alienation,  she  is  deemed  a 
feme  sole^  and  may  dispose  of  it  accordingly."  For  that  proposition 
he  refers  to  Bell  v.  Hyde{h)\  Norton  v.  Turv%U{e)i  Grighy  v. 
Cox(d)y  and  Hulme  v.  TennanUe);  as  to  each  of  which  some  of 
the  distinctions  I  have  alluded  to  will  be  found  to  apply.  So,  in 
Pybue  V.  Smith  (f)^  cited  for  the  respondent,  there  were,  special 
powers  of  appointment  of  the  estate  reserved  to  the  wife,  and  she 
was  alive  at  the  time ;  and,  in  TuUett  v.  Armstrong  (^),  the  estates 
were  only  given  to  the  lady  for  her  life. 

The  case  of  Power  v.  Bailey  (A)  was  also  much  relied  on  by  the 
Counsel  for  the  respondent,  as  an  express  decision  in  their  favour ; 
but^  on  examination,  it  will  be  found  to  admit  of  the  same  distinc- 


1660. 

CAoneory. 

^  ■    '  >        * 

ADAMS 

V. 

JudgMUMK 


(a)  4  Bmg.  505.  (b)  Tnc  Ch.  328. 

(c)  2  P.  Wms.  144.  (<0  1  Ves.  517. 

(e)  1  Bro.  G.  C.  16;  S.  C.»  1  W.  &  Tn.  Ii.  Cfw.  3d4. 
09  3  B.  C.  C.  340.  (g)  I  Beav.  1. 

(A)  1  B.  &  B.  49. 


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1860. 
Chancery. 


Judgment* 


tion.  The  estate  of  the  wife  were  vested  in  trustees,  for  her  sole 
and  separate  use,  and  so  that  she  should  have  full  power  and  dominion 
over  the  same.  The  wife  granted  an  annuity  (reciting  her  power 
over  the  property) ;  and  it  was  held  binding  on  her  second  husband, 
she  herself,  however,  being  alive  at  the  date  of  the  decree.  Stead 
V.  Wilson  (a)  was  a  case  of  a  life  estate  only  in  the  wife. 

The  respondents,  however,  mainly  relied  on  the  case  of  BaffgoU 
V.  Meux{b\  as  actually  deciding  and  settling  this  question.  The 
point  decided  in  it  was  that,  on  a  devise  in  fee  to  a  feme  covert^ 
for  her  separate  use,  a  restraint  against  alienation  could  be  imposed 
during  the  coverture;  and  it  was  argued  from  this  that  the  case 
imported  that,  without  such  a  clause,  an  absolute  right  of  alienation 
in  fee  would  exist.  The  case  decides  no  such  proposition.  The 
alienation  actually  made  was  held  void  as  against  the  wife,  who  was 
living  at  the  time  of  the  decision ;  and  the*  whole  import  of  the 
decision  is  no  more  than  this,  that,  so  far  as  the  devise  gaye  her 
power  to  deal  with  the  estate  as  B,feme  sole^  so  far  a  restriction  on 
alienation  might  be  imposed :  but  as  by  law,  on  all  the  authorities  I 
have  referred  to,  she  could  not  dispose  of  such  ten  estate  in  fee-simple 
as  a  feme  sole^  the  restriction  on  alienation  would  be  unnecessary 
or  inapplicable,  and  would  be  limited  to  that  w^ch  she  had  the 
power  to  do,  though,  within  that  range,  it  would  be  vdid  enough. 
The  observations  of  Lord  Lyndhurst,  in  giving  judgment,  may  be 
considered  as  implying  that  his  opinion  would  be  in  favour  of  the 
respondent  here ;  but  the  point  was  not  strictly  before  him ;  and, 
whatever  may  be  the  tendency  of  modem  decisions  to  enlarge  the 
position  or  power  of  hfeme  covert^  as  to  her  separate  estate,  and  the 
import  of  general  expressions  I  have  alluded  to,  I  cannot  consider 
the  apparently  settled  doctrine  to  which  I  have  adverted  as  shaken 
or  overruled.  If  it  is  to  be  so  dealt  with,  it  must  be  by  higher 
authority  than  mine.  I  must,  accordingly,  make  a  decree  in  favour 
of  the  petitioner ;  and,  as  this  is  a  mere  ejectment  suit,  the  decree 
must  be  with  costs. 


(a)  2  Beay.  245. 
(6)  1  CJol.  138;  S.  C,  on  appeal,  1  PhU.  627. 


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Declare  that  the  deed  of  the  23rd  day  of  May  1885  waa  ino- 
perative to  pass  any  estate  or  interest  in  the  premises 
therein  comprised ;  and  that  the  petitioner,  as  heir-at-law 
of  Isabella  Gramble,  otherwise  Adams,  is  now  entitled  to  the 
premises  demised  by  the  lease  of  the  10th  of  April  1791 ; 
and  let  an  injunction  (if  necessary)  issne,  to  pat  the  said 
petitioner  into  the  possession  thereof.  Refer  it  to  the  Mas- 
ter to  take  an  acconnt  of  the  rents  and  profits  of  the  said 
premises  in  the  said  lease  comprised,  from  the  death  of  the 
said  Isabella  Gramble,  in  the  month  of  February  1 842,  after 
all  just  credits  and  allowances ;  and  let  the  respondent  pay 
to  the  petitioner  the  amount  which  the  Master  shall  so  find 
due,  within  one  month  from  the  date  of  the  Master*s  report, 
together  with  the  costs  of  the  suit,  up  to  and  including  this 
hearing ;  and  let  the  costs  of  the  account  in  the  Master's 
office  be  in  the  discretion  of  the  said  Master. 

General  Hearing  Book^  26,/.  347. 


1860. 
Chancery, 

' , ' 

ADAMS 

V. 

OAMBLS. 

Order. 


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278  CHANCERY  REPORTS- 


1860. 
Ch,  Appeal. 


Court  o{  appeal  in  tfjftancerp. 

In  re  FITZGERALD'S  ESTATE ; 
Ex  parte  ANDREW  COMYN,  AppellatU. 


Aprils. 


In  an  affidayit  Fbahcis  FiTZGERALD,  who  was   possessed  of  certain   leasehold 
iled  under  the  .        .       ,  .  ^ 

rrorisions  of    premises  m  the  town  of  Gal  way,  execnted  a  bond  and  warrant, 

Jon  of  the  13  conditioned  for  the  payment  of  £700,   upon   which  a  judgment 

•\  29,  for  £*6  ^*®  entered  in  Hilary  Term  1840.     The  judgment  was  registered 

'^^^^  a    i"  ^®^^»  ^^  re-registered  on  the  21st  of  July  1856,  it  having, 

;°^^^J^^  in  1854,  become  vested  in  the  appellant. 

^*^^d  °^      ^^  ^®^^'  Patrick  M.  Lynch  obtained  a  judgment  against  Francis 

ant's  last       '  Fitzgerald,  in  the  Court  of  Common  Pleas,  for  the  sum  of  £894. 

known   place 

of  abode,  as    lOs.  LOd.,  besides  £2.  2s.  8d.  costs,  and  registered  the  same  as  a 

'•late   of  the  7^ 

town  of  Gal-  mortgage,  under  the  provisions  of  the  13  &  14  Ftc,  c.  29. 

«rav    but  noip 

of  the  county  Francis  Fitzgerald  died  in  1857 ;  and,  on  the  8th  of  March  1859, 

was  held  hi.  Patrick  M.  Lynch  filed  a  supplemental  affidavit,  under  the  provi- 

bdS^^too  "  8io°8  ^^  t^«  21  &  22  Vic,  c.  105. 

yagne.  j^y^^  Redington  had  obtained  a  judgment  against  Francb  Fitz- 

Thesameaffi-  o            -o 

davit  stated  the  gerald,  in  Trinity  Term  1855,  and  registered  the  same  as  a  mort- 
amonnt  of  the 

judgment  to  g&ge  on  the  25th  of  October  1855  ;  but  the  affidavit  was  defective, 
be  £894  and 

£3. 28. 8<L  for  ^^  i^ct  containing  a  substantive  statement  of  the  plaintiff's  last 

Sbe  sum  m<^  known  place  of  abode.      The  estate  of  Francis  Fitzgerald  was  sold 

tTlttl^^  in  the  Incumbered  Estates  Court  on  the  8th  of  April  1859 ;  and 

S^^^^i  ^^^  *^®  settlement  of  the  final  schedule  of  incumbrances.  Judge 

^^ep^tj^"*  Hargreave  ruled  that  the  supplemental  affidavit  filed  by  Patrick  M. 

added  to  the  Lynch  was  invalid,  having  been  sworn  subsequently  to  the  death  of 
costs  in   the 

affidayit.—       the  conusor ;  but  that  his  original  affidavit  was  sufficient,  and  that 
Held^  to   be 

snch    a  yari-  his  judgment  was,  therefore,  entitled  to  be  paid  in  priority  to  the 
anoe  as  invali- 
dated the  affi-  judgment  of  the  appellant. 

^ From  that  decision  the  present  appeal  was  brought,  upon  the 

Statemmit.     grounds,  among  others,  that  the  affidavit  originally  filed  by  Patrick 


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M.  Lynch  was  defective:  firstly;  because  it  did  not  contain  any 
sufficient  averment  of  the  .defendant's  last  known  place  of  abode; 
secondly ;  because  the  sum  of  £3.  2s.  8d.,  mentioned  therein  as 
having  been  recovered  for  costs,  did  not  correspond  with  the  record, 
upon  which  the  sum  for  costs  appeared  to  be  £2.  2s.  8d. 
Lynch's  original  affidavit  ran  as  follows: — 

'<  Common  Pleas. 


1860. 
Cb,  Appeal, 


Patrick  Mark  Lynch,  of  Ren* 
more-lodge,  in  the  county  of 
the  town  of  Galway,  Esq.,  aged 
thirty  years  and  upwards,  the 


Statement, 


«*  Patrick  Matk  Lynch,  of  Benmore-lodge, . 

in  the  county  of  the  town  of  Galway, 

Esq.,  Plaintiff; 

Francis  Fitigerald,  late  of  the  town  of 

Galway,  but  now  of  the  comity  of 

Dublin,  Defendant 

phdntiff  in  this  cause,  maketh  oath  and  saith  that  the  defendant,  by 
his  name  and  description  of  Patrick  Mark  Lynch,  of  Renmore-lodge 
in  the  county  of  the  town  of  GWway,  Esq.,  did,  on  the  27th  day  of 
February,  in  the  year  of  our  Lord  1856,  and  in  or  as  of  Hilary 
Term,  in  the  said  year  of  our  Lord  1856,  obtain  a  judgment  in  Her 
Majesty's  Court  of  Common  Pleas  in  Ireland,  against  Francis  Fitz- 
gerald, late  of  the  town  of  "Galway,  but  now  of  the  county  of 
Dublin,  the  defendant  in  this  cause,  by  the  name  and  description  of 
*  Francis  Fitzgerald,  late  of  the  town  of  Galway,  but  now  of  the 
county  of  Dublin,'  for  the  sum  of  £894.  lOs.  01.  sterling,  besides 
£3.  28.  8d.  for  costs,  as  by  the  records  of  said  Court  may  more  fully 
appear.  This  deponent  further  saith  that,  to  the  best  of  deponent's 
knowledge,  information  and  belief,  the  said  defendant  in  this  suit  is, 
at  the  time  of  swearing  this  affidavit,  seised  and  possessed  of,  or  has 
disposing  power,  which  he  may,  without  the  assent  of  any  other 
person,  exercise  for  his  own  benefit,  over  and  issuing  out  of  certain 
tenements,  hereditaments  and  premises  hereinafter  mentioned ;  that 
is  to  say.— [Here  followed  a  description  of  the  lands  sought  to  be 

i^ff^ted.] Deponent  further  saith  that  the  sum  of  £894. 10s.  Od., 

besides  the  sum  of  £3.  2s.  8d.  for  costs,  aforesaid,  so  secured  by  said 
judgment,  as  aforesaid,  with  interest  thereon,  still  remains  justly 
due  and  owing  to  this  deponent,  on  foot  of  said  judgment,  over  and 
above  all  just  and- fair  allowances,  and  that  said  judgment  is  still  in 
full  force,  virtue  and  effect  in  law." 


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CHANCERY  REPORTS. 


1860. 
Ch.  Appeal. 

^T^ ' 

In  re 

FITZQSR- 

axd's 

ESTATE. 

Statement. 


6UPPLEMENTAJL  AFFIDAVIT. 

"/n  the  Court  of  Common  Pleas. 


"  Patrick  M.J.yiich,  of  Renmore,  in  the  county     Patrick   Mark    LvDch,   of 
of  the  town  of  Galwaj,  Esq.,  Plaintiff; 

Francis  Fitzgerald,  late  of  the  town  of  Galway, 

bat  now  of  the  county  of  Dnblin,  Esq.» 
Defendant 
And  the  Acts  of  13  8c  14  Vic.,  c  29,  and  the 

21  &  22  Vic,,  c  105. 


Renmore,  in  the  county  of 
>.  the  town  of  Galway,  Esq., 

aged  forty  years  and  up- 
/  wards,     the     plaintiff    in 


the  cause  in  the  title  hereof  named,  and  hereinafter  mentioned, 
maketh  oath  and  saith  that  that  he  this  deponent  obtained  a  judg- 
ment in  said  cause  on  the  27th  day  of  February  1856,  in  or  as  of 
Hilary  Term  1856,  in  Her  Majesty's  Court  of  Common  Pleas  in 
Ireland,  against  Francis  Fitzgerald,  late  of  the  town  of  Galway, 
Esq.,  the  defendant  in  said  cause,  in  the  title  hereof  named,  and 
hereinafter  stated,  for  the  sum  of  £894.  10s.  Od.  sterling,  besides 
£3.  2s.  8d.  for  costs,  as  by  records  of  said  Court  may  appear.  Saith 
that  the  cause  in  which  he  obtained  said  judgment  is  entitled 
*  Patrick  Mark  Lynch,  of  Renmore,  in  the  county  of  the  town  oi 
Galway,  Esq.,  plaintiff;  and  Francis  Fitzgerald,  late  of  the  town  of 
Galway,  but  now  of  the  county  of  Dublin,  Esq.,  defendant.'  Saith 
that  the  deponent  is  an  Esquire,  and  that  his  present  and  usual  place 
of  abode  is  at  Renmore,  in  the  county  of  the  town  of  Galway ;  and 
saith  that  the  said  Francis  Fitzgerald,  the  defendant  in  said  cause, 
and  the  person  whose  estate  is  intended  to  be  affected  by  the  regis- 
tration of  this  affidavit,  is  now  deceased,  and  was  aii  Esquire,  and 
that  his  usual  and  last  known  place  of  abode  was  at  George's-place, 
in  the  county  of  the  city  of  Dublin ;  and  saith  that  the  name  '  Pat- 
rick Mark  Lynch '  is  the  plaintiff  in  said  cause,  and  the  party  who 
obtained  said  judgment  is  the  deponent's  proper  name.  This  depo- 
nent further  saith  th^t,  to  the  best  of  his  knowledge  and  belief,  the 
said^Francis  Fitzgerald  was,  at  the  time  of  the  entering  and  regis- 
tering of  the  said  judgment,  and  at  the  time  of  his  death,  seised  or 
possessed,  at  Law  or  Equity,  of,  or  had  disposing  power  which  he 
might,  without  the  assent  of  any  other  person,  have  exercised  for 
his  own  benefit,  over  certain  lands,  tenements,  hereditaments  and 
premises,  hereinafter  mentioned. — [Here  followed  the  description  of 
the  lands.] — Saith  that  the  sum  so  secured  by  the  said  hereinbefore 


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mentioned  judgment,  besides  interest,  and  £3.  28.  8d.,  for  costs,  still 
remains  justly  due  and  owing  to  the  deponent;  and  saith  that  said 
judgment  is  still  in  full  force,  virtue  and  effect  in  law. — Sworn,"  &c. 

Mr.  Brewster  (with  Mr*  Sherlock),  for  the  appellant 
The  13  <fe  14  Vic,  c.  29,  gave  to  judgment  creditors  the  power; 
of  converting  their  judgments  into  mortgages,  by  filing  the  affidavit 
prescribed  by  the  6th  section.      This   was  the  first    legislative 
enactment,  in  this  country,  which  gave  a  creditor  the  power  of 
transferring  to  himself  the  lands  of  his  debtor,  without  any  notice 
to  the  latter,  or  any  act  done  by  him  in  that  respect.      While 
conferring  on  the  creditors  this  enormous  power,  the  Legislature  has 
most  properly  guarded  the  rights  of  the  debtor,  by  requiring  a  very 
particular  and  precise  form  of  affidavit  to  be  filed,  and  the  Courts 
of   Law  have  strictly  construed    such    affidavits :   McDowell  v. 
Wheatley  (a)  ;    Crothie  v.   Murphy  (6).    Lynch's  affidavit   is  de« 
fective,  because  it  does  not  contain  any  positive  averment  of  the 
defendant's  last  known  place  of  abode ;  or  if  it  does,  the  averment 
is  insufficient  on  account  of  its  vagueness.     The  affidavit  is  also 
defective  in  not  stating  correctly  the  amount  of  the  sum  recovered 
for  costs.    It  may  be  that  the  place  of  abode  mentioned  conveys 
sufficient  information,  but  that  is  not  the  question.     In  McDowell 
v.  WhecUley,  Monahan,  C.  J.,  is  reported  to  have  said  (e),  '*  If  an 
Act  of  Parliament  requires  that  a  particular  thing  shall  be  done 
.  in  a  particular  way,  for  a  particular  object  and  purpose,  it  is  not 
for  a  Court  of  Law  to  inquire  whether  the  same  object  might  not 
be  attained  another  way."    The  description  ^<  now  of  the  county 
of  Dublin"  is  entirely  too  vague,  it  might  nearly  as  well   have 
been  ^'  now  of  the  kingdom  of  Ireland."  In  Fonblanque  v.  Lee  (d), 
it  was  held  that  where,  upon  the  registration  of  a  bill  of  sale,  the 
affidavit  required  by  the  Bill  of  Sale  Act  (17  &  18  Vic^  c.  55) 
omitted  the  description  of  the  residence  and  occupation  of  one  of 
the  attesting  witnesses  to  the  bill  of  sale,  the  bill  of  sale  was,  by 
reason  of  such  omission,  rendered  void  as  against  an  execution 


1860. 
CA.  Appeal 


ArgununU 


(a)  7  Ir.  Com.  Law  JR^.  562. 
(c)  p.  569. 
VOL.  11. 


(b)  8  Ir.  Com.  Law  Rep.  301. 
(d)  7  Ir.  Com.  Law  Rep.  550. 
36 


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CHANCERY  REPORTS. 


)860. 
Ch,  AppeaL 

In  re 

FiTzasm- 

ald's 

ESTATE. 
Argumeni. 


creditor.  This  defect  of  vAguetiess  coald  not  be  cured  bj  the 
supplemental  affidavit;  for  the  21  &  22  Vic,  c.  105,  under  whose 
provisions  such  supplemental  affidavits  are  filed,  was  never  intended 
to  give  any  power  to  remedy  substantial  defects;  it  merely  gives  him 
power  of  stating  by  substantive  avernient  that  which  in  the  original 
affidavit  had  been  stated  by  way  of  recital. 

The  sum  stated  in  the  affidavit  as  recovered  for  costs  is  £3. 
2s.  8d. ;  the  sum  mentioned  on  the  record  is  £2.  2s.  8d.  This  is  a 
distinct  variance.  The  amount  of  Variance  is  immaterial;  there 
is,  in  fact,  therefore,  no  such  judgment  on  the  the  record  as  that 
mentioned  in  the  affidavit.  The  proper  plea  would  be  nul  tiel 
record. 


Mr.  P.  J.  Blake  and  Mr.  M.  McrriSj  for  P.  M.  Lynch. 

The  place  of  abode  is  stated  in  this  affidavit  with  as  much  pre- 
cision as  was  possible  under  the  circumstances. — [The  Loan 
Chancellor.'— It  is  not  stated  at  alL  **0f  the  county  of  Dublin  ** 
is  no  description  of  the  place  of  abode,  within  the  meaning  of 
the  Act.  tt  might  nearly  as  well  have  described  him  as  of  England, 
Ireland,  or  Scotland.  A  man's  place  of  abode  means  where  he 
may  be  found.] — ^In  MPDoweU  v.  WheatUy  there  Was  no  positive 
averment  of  the  place  of  abode  at  all,  there  was  only  an  aver- 
ment by  way  of  recital ;  that  is  not  so  here :  there  is  a  positive 
averment,  and  it  is  submitted  that  that  averment  is  sufficient.  Fon- 
blangue  v.  Lee  is  not  analogous,  for  the  Bill  of  Sales  Act  requires 
greater  accuracy  as  to  the  residence  of  parties,  in  consequence  of 
the  liability  of  trader^  to  bnnkruptcy.  In  ff aslope  v.  nome{a), 
it  was  held  that,  in  ad  affidavit  to  hdd  to  bail,  the  plaintiff's  clerk 
might  sute  his  abode  to  be  the  office  where  he  was  employed  during 
the  greater  part  of  the  day,  though  at  night* he  used  to  sleep  at 
another  place. 

As  to  the  objection  that  the  affidavit  does  not  correctly  state  the 
sum  recovered  for  costs,  the  13  &  14  Ttc,  c.  74,  s.  10,  says,  that 
upon  the  lodgment  of  any  memorandum  for  the  registry  of  any 
judgment  in  the  office  for  the  registry  of  judgments,  the  Regis- 

(a)  1M.&S.103. 


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283 


trar  shall  give  a  certificate  of  such  registry,  with  a  reference  to 
the  books  of  the  office.  The  J02Qd  General  Order  (1854)  provides 
that  **the  Master,  in  awarding  the  costs  of  a  judgment,  shall,  on 
produetion  of  the  certificate  of  the  registration  of  such  judgment, 
under  the  13  &  14  Vic^  c  74,  add  to  the  costs  therein  the  sum  of 
one  pound,  as  and  for  the  ousts  of  such  registration."  The  11th 
section  of  the  13  <&  14  Vie.,  c.  74,  enacts>  *^  That  all  costs  properly 
incurred  in  the  registration  of  judgments  shall  be  allowed  on  tax- 
ation of  costs,  and  be  added  to  and  charged  and  recoverable  in  like 
manner  and  together  with  the  amount  of  the  judgment  so  registered." 
Therefore,  the  one  pound  for  registration  forms  part  of  the  costs 
recovered,  and  are  propedj  included  in  the  words  *^  moneys  ordered 
to  be  recovered,"  4^.  3ut  it  is  submitted  tb<it  it  was  not  oeces- 
sarj  to  state  in  the  affidavit  th^  amount  of  the  costs  at  all. 
The  6th  section  of  the  13  &  14  Fm.,  c.  99j  enacts  that  the  affi- 
davit shall  state  *Hhe  amount  of  the  debt,  damages,  costs  or 
moneys,  recovered  or  ordered  to  be  paid  by  such  judgment,  de^ 
cree,  order,  or  rule  ; "  redendo  singulu  nngulUy  the  word  **  costs  " 
refers  only  to  costs  recovered  for  a  decree,  order,  or  rule. 


Jkrfpmvu*, 


Mr.  Sullivan  and  Mr.  Beyiagh^  for  jteddington. 

In  Blaokwell  v.  England  {a)^  it  was  held  that,  where  a  bill  of 
sale  was  attested  by  a  witness  described  as  <*  clerk  to  Messrs. 
Brundrett  and  Bandall,  solicitors,  Temple,"  the  fact  being  that 
be  spent  his  business  hours  there,  but  took  his  meals  and  slept 
elsewhere,  the  description  of  residence .  was  Jield  auAcieni.  In 
that  case,  Erie,  J.,  in  his  judgment  said,  (p.  549),  '^  I  am  happy  to 
say  thajt  the  sound  principle  of  common  sense  on  which  we  decide 
in  construing  this  Aet  is  no  novelty.  In  Haslope  t.  7%onM, 
Lord  EUenborough  said  that  the  words  place  of  abode  did 
not  necessarily  mean  the  place  where  the  defendant  sleeps;  that 
the  object  of  this  rule  of  Court  was  to  ascertain  the  place  where 
^he  deponent  was  most  usually  to  be  found,  which  in  the  present 
case  wee  the  office  in  which  he  was  employed  during  the  greater 
part  of  the  day,  and  not  the  place  whither  he  returned  for  the 

(a)8EIL&B.541. 


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284 


CHANCERY  REPORTS. 


1860. 
Ch.  Appeal 

In  re 
Fitzger- 
ald's- 

ESTATE. 
Argument, 


purpose  of  rest.  The  rule  of  eonstruction  is  the  same,  whether 
it  he  a  rule  of  Court,  or  au  Act  of  ParliameDt.**  In  Wills  v. 
Adey  (a),  ''  of  the  parish  of  Fisherton  Anger,  on  the  list  of  voters 
for  the  said  parish  of  Fisherton  Anger,"  was  held  a  sufficient 
description  of  the  defendant's  place  of  ahode,  under  the  Voters 
Act ;  and  in  Osborne  v.  Gough  (6),  '*  of  Birmingham"  was  held  a 
sufficient  description  of  the  place  of  ahode  of  the  attorney  whose 
name  was  indorsed  on  the  notice  of  action. 


Mr.  Sherlock  replied. 


The  Lord  Chancellor. 
Judgwmnt,  '^^^  affidavits,  upon  the  validity  of  which  we  have  now  to 

decide,  purport  to  be  framed  in  accordance  with  the  requirements 
of  an  Act  of  Parliament  which  specifies  very  fully  the  matters 
which  such  affidavits  ought  to  contain.  Upon  the  construction 
of  that  Act  of  Parliament  there  have  be^n  already  some  im* 
portant  decisions,  all  tending  to  establish  that  the  matters  which 
are  required,  by  the  Act,  to  be  stated,  must  be  stated  by  positive 
averment,  upon  the  oath  of  the  party  making  the  affidavit.  The 
21  &  22  Fife,  c.  105,  was,  no  doubt,  introduced  by  the  Legis- 
lature as  a  remedial  enactment ;  but,  as  far  as  the  present  question 
is  concerned,  that  Act  only  enables  the  party,  by  means  of  a 
supplemental  affidavit,  to  convert  into  matter  of  positive  averment 
matters  which  have  been  introduced  by  way  of  recital  into  the 
original  affidavit.  In 'the  case  now  before  us  there  can  be  no 
doubt  whatever  as  to  the  invalidity  of  Mr.  Reddington's  affidavit, 
inasmuch  as  it  does  not  contain  any  averment  pledging  his  oath 
to  the  fact  of . Fitzgerald's  last  known  place  of  abode;  it  merely 
states  the  facts  which  are  embodied  in  the  description  of  the 
judgment 

As  to  Lynch's  affidavit  the  case  is  somewhat  different.  It  does 
contain  a  statement  amounting  to  an  averment,  that  Fitzgerald  was 
"late  of  the  town  of  Galway,  and  now  of  the  county  of  Dublin;** 
"now"  meaning  the  time  of  swearing  the  affidavit.    That  he  ^ 

(a)  2  C.  B.  246.  (6)  3  B.  &  P.  550. 


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of  the  town  of  Galwaj  was  quite  true  ;  and  all  the  authorities  which 
have  been  referred  to  establish  that  such  a  description  would  amount 
to  an  averment  that  that  was  his  place  of  abode.  ,The  Acts,  upon 
the  construction  of  which  those  cases  were  respectively  decided, 
required  that  the  place  of  abode  of  the  party  (or  of  his  attorney,  in 
some  cases)  should  be  averred,  and  were  held,  in  the  respective 
decisions,  to  be  satisfied  by  stating  the  person  to  be  ''of*  such  a 
place.  There  have  been  also  several  decisions  as  to  the  certainty 
or  vagueness  of  the  place  of  abode  assigned ;  from  which  it  appears 
that,  whether  stating  a  party  to  be  **  of  London,^  or  **  of  Westmins- 
ter," be  sufficient  or  not,  having  regard  to  the  great  extent  of  these 
respective  places,  there  can  be  no  doubt  that  stating  him  to  be 
*'of  Birmingham,"  or  "of  Bolton-in-le-Moore,"  is  sufficient.  If, 
then,  this  part  of  Lynch's  affidavit  had  stopped  at  the  words  ''  late 
of  the  town  of  Gralway,"  it  would  have  been  hard  to  say  that  that 
was  not  a  sufficient  description  of  his  last  known  place  of  abode. 
It  may  be  questioned  whether  Fitzgerald  did,  in  fact,  acquire  any 
place  of  abode,  within  the  meaning  of  the  Act,  after  he  left  Galway ; 
but  Lynch  has  established,  by  his  affidavit,  that  he  did  ;  for  in  it  he 
describes  himself  as  **  now  of  the  county  of  Dublin,"  which  imports 
that  he  had  acquired  a  place  of  abode  in  the  county  of  Dublin. 
Now  I  am  quite  clear  that  **  now  of  the  county  of  Dublin  "  is  not  a 
sufficient  description  of  a  party's  place  of  abode.  It  is  quite  too 
▼ague ;  and,  as  the  entire  averment  shows  that  the  town  of  Galway 
was  not  his  last  place  of  abode,  it  follows  that  the  affidavit  is 
defective  in  this  respect.  It  is  plain  that  the  party  did  not  intend 
to  practise  any  deceit  or  fraud ;  and  it  is,  no  doubt,  to  be  lamented 
that  parties  endeavouring  to  do  right  should  be  hampered  by  the 
requirements  of  the  Act  of  Parliament ;  but,  on  the  other  hand,  it 
most  be  remembered  that  this  Act  enables  judgment  creditors,  by 
means  of  such  affidavits,  to  convert  their  judgments  into  mortgages, 
and  thereby  transfer  to  themselves  the  estates  of  their  debtors  i  and 
the  Legislature  has  properly  guarded  the  rights  of  the  debtors,  by 
requiring  an  exact  and  particular  form  of  affidavit. 

There  is  another  matter  as  to  which  Lynch's  affidavit  is  defective ; 
t^^  amount  recovered  by  the^  judgment,  as  stated  in  the  affidavit. 


1860. 
Ch.  Appeal, 


Judgment. 


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Ch,  AppeaL 


Judgment, 


does  not  correspond  with  the  amount  appearing  oh  the  record.  I 
have  again  to  regret  that  a  party  should  be  thus  embarrassed  by  the 
statute,  when  he  endeavours  to  comply  with  its  requirements  ;  but 
he  has  done  so  in  a  way  wliich  will  not  allow  us  to  assist  him  in  his 
difficulty.  The  original  sum  recovered  by  the  judgment  is  cor- 
rectly stated,  but  the  affidavit  states  that  there  was  also  recovered  a 
sum  of  £3.  2s.  8d.  for  costs.  When  the  record  is  produced,  it 
appears  that  the  additional  sum  recovered  was  not  £3.  2s.  Sd.,  but 
£2.  28.  8d.,  and  that  it  was  recovered,  not  as  costs,  but  as  damages 
for  the  detention  of  the  debt  Now,  in  this  point  of  view,  £1  is 
of  as  much  importance  as  £100 ;  and,  although  the  party  intended 
to  do  what  was  right,  he  has  not,  in  point  of  fact,  complied  with 
the  requirements  of  the  statute,  and  his  affidavit  is  accordingly 
defective. 

The  order  of  the  Court  below  must  be  reversed. 


The  LoBD  Justice  of  Appbai^. 

I  entirely  concur. in  the  view  taken  by  the  Lobd  Chancbllob, 
and  in  his  reasons.  The  appellant  in  this  case  and  Mr.  Lynch  and, 
the  one  a  creditor  by  judgment,  of  the  year  1840,  and  the  other  a 
like  creditor,  of  the  year  1856.  The  latter  contends  that,  by  regis- 
tration, he  has  acquired  a  prior  title,  and  become  a  mortgagee.  In 
order  to  establish  this  priority,  and  thereby  postpone  the  prior 
creditor,  it  is  incumbent  on  him  to  prove  a  strict  compliance  with 
the  provisions  of  the  statute,  which  is  the  indispensable  condition  of 
acquiring  the  right  and  benefit  it  is  meant  to  confer.  The  Court 
is,  accordingly,  bound  to  see  that  all  that  the  statute  requires  has 
been  complied  with,  otherwise  it  is  impossible  that  the  prior  title 
can  be  displaced  or  postponed.  Now  we  have  both  judicial  and 
legislative  authority  for  exacting  a  precise  adherence  to  all  its  oon- 
ditions.  The  facts  it  requires  must  be  stated  positively  and  expM- 
oitly;  recitals  or  inferences  cannot  be  substituted  for  them;  nor 
can  the  want  of  them  be  excused  on  the  ground  cf  their  being 
immaterial,  or  by  arguing  that  their  absence  may  be  supplied  by 
equivalent  matters.  The  decisions  of  the  Court  of  Common  Pleas, 
in  Fonblanque  v.  Lee  and  McDowell  ▼•  Wheatiei/^  followed  by  the 


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Act  of  Parliament  for  remedying  defective  registrations,  preclude 
08  from  yielding  to  any  such  considerations,  and  from  dispensing 
with  a  strict  compliance  with  all  or  any  of  the  conditions  to  which  I 
refer.  Now  I  think  these  conditions  have  not,  in  several  respects, 
heen.obfterved  in  the  present  case*  The  affidavit  does  not  state  the 
last  known  place  of  abode  of  the  debtor ;  for  although  it  might  have 
been  sufficient  to  have  said,  "  late  of  the  town  of  Galway,"  that 
place  of  abode  appears  to  have  been  abandoned,  and  '*  the  county  of 
Dublin**  fiubstitnted  for  it;  this  is  not,  in  my  opinion,  a  descrip- 
tion of  the  place  of  abode,  such  as  to  comply  with  the  requisition 
of  the  statute.  « 

The  last  objection  is,  that  there  is  a  variance  between  the  affidavit 
of  registry  and  the  judgment  of  record.  That  this  variance  exists 
cannot  be  denied,  atid  the  defence  against  it  amounts  to  no  more 
than  assertion  of  its  immateriality.  Now,  it  is  true  that  the  differ- 
ence between  the  amounts  of  the  doms  in  the  affidavit  and  in  the 
judgment  is  very  small,  and,  I  dare  say,  the  greater  sum  could  be 
recovered  by  execution;  but  still  the  variance  exists.  The  two 
things  are  not  identical }  and  whether  the  difference  be  a  difference 
of  £1  or  of  £1000,  yet  the  fact  is,  that  the  judgment  of  record 
is  not  the  same  as  that  described  in  the  affidavit  of  registration. 

The  affidavit,  and  consequently  the  registration,  is,  therefore, 
invalid,  and  the  judgment  of  the  Court  below  must  be  reversed. 


Judgment, 


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1860. 
Ch,  Appeal, 


In  re  EDWARD  SANDIFORD  POWER'S  ESTATE; 
JOHN  TAYLOR,  Appellant. 


Nov.  12. 


If  an  aflBdavit,  This  was  an  appeal  against  an  order  made  bj  Judge  Dobbs,  in  the 
purpose  of  re-  Landed  Estates  Court,  by  which  he  disallowed  a  judgment  mort- 
^Kment  aaa  g^o^*  registered  bj  the  appellant  against  the  lands  sold  in  this 
undw^thepro-  ™^*^^  "P^*^  ^^®  ground  that  the  judgment  had  not  been  duly 
Ia*&°i4°V^***  registered  as  a  mortgage,  under   the   provisions  of  the  13  &  14 

c.  29,  sabstan'.    Vic,  C.  29. 
>  tially  complies 
with  the  re-         John  Taylor,  the  appellant,  obtained  a  judgment  as  of  Trinity 
aairements  of 

the  6th  section  Term  1858,  against  Edward  Sandiford  Power,  the  owner,  for  £3559. 
of  that  statute, 

it  is  snffident.   12s.  4d.,  with  £3.  3s.  Od.  for  costs;  and  on  the  3rd  of  August  1858, 
Therefore, 
where  sach  an  registered  the  same  as  a  mortgage,  under  the  13  &  14  Ftc,  c.  29* 

afiSdavit    ixras 

entitled  in  the  '^^^  affidavit  sworn  at  the  time  of  the  registration  was  as  follows : — 
Sl^^^^J  ^f  "  ^»  ^  Court  of  Exchequer. 


^\  ^t^r '*  "  ^^^^  Taylor,  of  No.  116  Grafton-street,  fai 
ter  alia)    that         *^®  ^^  ^'  Dnblin,  solicitor.       Plaintiff. 

"J.  T.,  the  Edward  Sandiford  Power,  of  No.  7  Wilton- 
plaintiff,  by  place,   Belgrare-sanare,   in  the  county  of 
the  name  and         ^,.,«  ,,    i     ..  -«,  -w^  ,    -,    \ 
description   of        Middlesex,  England,  Esq.,    Defendant 

J.  T.,  of  116        And  the  Act  of  the  13  &  14  Ftc,  c,  29. 


John  Taylor,  of  llBGraf- 
ton*street,  in  the  county  of 
the  city  of  Dublin,  solicitor, 
aged  thirty  years  and  up- 
in.  the'^d^^of  ^ards>  the  plaintiff  in  this  cause,  maketh  oath  and  saith,  that  he, 
dltorl'^didT^on  ^^'®  deponent,  John  Taylor,  the  plaintiff,  by  the  name  and  descrip- 
?nl  ^^'^ob-  ^^^^  ^^  ^^^^   Taylor,  of  No.  116   Grafton-street,  in  the  city  of 

tain  a  judj?-     Dublin,  solicitor,  did,  on  the  15th  day  of  July,  in  the  year  of  our 
ment  in  the  .>  ^^  j 

Court  of  Ex-  Lord  1858,  and  in  or  as  of  Trinity  Term,  in  the  said  year  of  our 
cheqaer, 

against   the      Lord  1858,  obtain  a  judgment  in  Her  Majesty's  Court  of  Exchequer 
defendant  in 
this  cause,  by 

the  name  and  description  of  £.  S.  P.,  of,  &c.,  .  .  .  .  that  the  usual  or  last-known 
place  of  abode  of  the  said  E.  S.  P.,  the  defendant  in  this  cause,  the  person  whose 
estate  is  intended  to  be  afiected  by  the  registration  of  this  affidavit,  is  at,  &c.  .  .  . 
that,  to  the  best  of  deponent's  knowledge  and  belief,  the  said  £.  S.  P.,  the  defend- 
ant in  this  cause,  is,  at  the  time  of  swearing  this  affidarit,  seised  or  possessed 
of,"  4c,  &c — 

l/e/</— First,  that  the  abote  affidavit  contained  a  sufficient  statement  of  the  title 
of  the  cause. 

Secondly ;  that  the  affidavit  sufficiently  identified  the  defendant  in  the  judgment 
with  the  person  whose  estate  was  sought  to  be  affected  by  the  registration  of  the 
affidavit. 


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10  Ireland,  against  the  defendant  in  this  cause,  bj  the  name  and         I860. 

Ch,  JippeaL 
description  of  Edward  Sandiford  Power,  of  No,  7  Wilton-place,  - 

Belgrave-sqaare,  in  the  county  of  Middlesex,  England,  Esq.,  for  the 
sum  of  £3559.  128.  4d.  sterling,  besides  £3.  8s.  for  costs  ;  as  bj  the 
records  of  said  Court  may  fully  appear.  This  deponent  further  Statement. 
saith,  that  the  usual  and  known  place  of  abode  of  this  deponent  is 
at  No.  116  Grafton-street,  in  the  county  of  the  city  of  Dublin,  and 
that  he  is  a  solicitor  of  the  Court  of  Chancery,  and  an  attorney  of 
this  Honorable  Court ;  and  that  the  usual  or  last  known  place  of 
abode  of  the  said  Edward  Sandiford  Power,  the  defendant  in  this 
cause,  the  person  whose  estate  is  intended  to  be  affected  by  the 
registration  of  this  affidavit,  is  at  No.  7  Wilton-place,  Belgrave- 
square,  in  the  county  of  Middlesex,  England ;  and  that  the  said 
Edward  Sandiford  Power  is  not,  to  deponent's  knowledge  or  belief, 
of  any  trade  or  profession,  but  is  an  Esquire.  This  deponent  further 
saith,  to  the  best  of  his  knowledge,  information  and  belief,  the  said 
Edward  Sandiford  Power,  the  defendant  in  this  cause,  is,  at  the  time 
of  swearing  this  affidavit,  seised  or  po^/sessed  of,  at  Law  or  in  Equity, 
or  has  disposing  power,  which  he  may,  without  the  assent  of  any 
other  person,  exercise,  for  his  own  benefit,  over  certain  lands,  tene- 
ments, hereditaments  and  premises  hereinafter  mentioned ;  that  is  to 
say,  the  town  and  lands  of  B. — [Here  followed  the  several  denomina- 
tions of  the  land  sought  to  be  afibcted,  and  the  names  of  the  baronies 
and  counties  in  which  they  were  respectively  situated.] — Deponent 
further  saith,  that  the  sum  of  £1779*  16s.  2d.  for  debt  and  costs 
still  remains  justly  due  and  owing  to  this  deponent,  upon  said 
judgment,  over  and  above  all  just  and  fair  allowances,  and  that  said 
judgment  is  still  in  full  fgrce,  virtue  and  effect  in  law,  not  executed, 
satisfied,  set  aside,  paid  off  or  discharged. 

"John  Taylor." 
The  lands  in  question  were  subsequently  sold  in  the  Landed 
Estates  Court  $  and  on  the  settlement  of  the  final  schedule,  before 
Judge  Dobbs,  Taylor's  judgment  mortgage  was  disallowed  as  aix 
incumbrance,  on  the  ground  that  the  requirements  of  the  6th  section 
of  the  13  &  14  Ftc,  c.  29,  had  not  been  complied  with,  inasmuch  ' 
as  the  affidavit  did  not  contain  any  averment  of  the  title  of  the 
TGI*.  11.  37 


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Argument, 


cause  in  which  the  judgment  had  been  recovered,  nor  any  averment 
which  identified  the  defendant  in  the  judgment  with  the  owner  of 
the  lands  sought  to  be  affected  bj  the  judgment  mortgage. 
Against  that  decision  the  present  appeal  was  brought. 

Mr.  Brewster,  with  Mr.  F.  Wahhe  and  Mr.  GambUy  for  the 
appellant. 

This  case  is  quite  distinguishable  from  McDowell  y.  Wkeatiey(a). 
There  the  affidavit  did  not  contain  any  positive  averment  whatever 
of  the  title  of  the  cause,  nor  of  the  last-known  place  of  abode  of  the 
defendant.  Here  there  is  such  positive  averment  as  must,  by 
reasonable  and  irresistible  inference,  inform  anyone,  reading  the 
affidavit,  of  the  title  of  the  cause,  and  of  the  identity  of  the  defend- 
ant in  the  judgment  with  the  person  whose  estate  is  sought  to  be 
affected  by  the  registration.  Reasonable  inference  is  sufficient  in 
such  cases:  JRoublot  v.  Bouiell{b)i  Blaekwell  v.  England {e). 

Mr.  J,  E,  Wahhe  and  Mr.  Coxe,  in  support  of  the  order  of  the 
Court  below. 

There  is  here  no  positive  averment  of  the  title  of  tiie  cause 
sworn  to ;  for  the  entitling  of  the  affidavit  is  not  covered  by  the  oath. 
Neither  is  there  any  positive  averment  that  the  defendant  in  the 
judgment  is  the  person  whose  estate  is  sought  to  be  affected  by  the 
registration.  The  affidavit  merely  states  that  ^*the  last-known 
place  of  abode  of  the  said  Edward  Sandiford  Power,  the  defendant 
in  this  cauflfc,  the  person  whose  estate  is  intended  to  be  affected  by 
the  registration  of  this  affidavit,  is,**  &c.  Affidavits  for  the  purpose 
of  converting  judgments  into  mortgages  are  strictly  construed: 
McDowell  V.  Wheatley\  Crosbie  v.  Murphy  {d)\  In  re  Fitz- 
gerald^e  Ettate  {e) ;  In  re  Ferrall  (f).  The  only  proper  form  of 
entitling  an  affidavit  is,  A  v.  B  :    Richard  v.  Isaac  (jg). 

(o)  7  Ir.  Com.  Law  Eep.  562.  (6)  5  Jur.,  N.  8.,  548. 

(c)  8  £U.  &  Bl.  541.  (<0  8  Ir.  Com.  Law  Bep,  301. 

(e)  Ante,  p.  278 ;  S.  C,  5  Ir.  Jur.,  N.  8.,  205. 
(f)  5  It.  Jur.,  N.  S.,  274.  (^)  1  Cr.,  M.  &  B.  13C. 


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The  LoBD  Chahcellob. 

The  Court  is  perfectljr  satiBfied  that,  in  the  affidavit  now  hefore 
it,  all  that  is  required  bj  the  Aot  of  Parliament  has  been  more  than 
substantiallj  oomplied  with,  and  that  the  principle  of  the  decision 
in  IPDaweli  v.  WheiUley  has  been  carried  too  far  in  the  Court  Judgment. 
below,  if  it  has  been  supposed  to  invalidate  the  affidavit  in  the  pre- 
sent case.  It  has  been  said,  during  the  argument,  that  if  we  hold 
this  affidavit  good,  we  must  overrule  the  decision  in  McDowell  v« 
Wkeailey.  We  do  no  such  thing.  The  Act  of  Parliament, 
upon  which  this  question  depends,  requires,  bj  iu  6th  section, 
that  the  affidavit  made  for  the  purpose  of  converting  a  judgment, 
order  or  rule  into  a  mortgage  shall  contain,  among  other  matters, 
an  averment,  upon  oath,  of  the  usual  or  last-known  place  of  abode, 
and  the  title,  trade  or  profession  of  the  plaintiff  and  of  the  defend- 
ant In  the  affidavit  in  McDowell  v.  Wheailey^  there  was  no 
averment  whatever  of  the  usual  or  last-known  place  of  abode  of  the 
defendant.  It  was  there  sought  to  help  out  that  defect  by  referring 
to  the  statement  that  the  order  had  been  registered  ^*  against  James 
Sadleir,  by  the  name  and  description  of  James  Sadleir,  of  blona- 
cody,  Clonmel,  in  the  county  of  Tipperary,  Esq.,  M.P/'  But  that 
did  not  cure  the  defect,  for  he  might  have  had  a  last-known  place  of 
abode  subsequently  to  the  registration  of  the  order.  The  Court  w^ 
in  point  of  fact,  quite  right  in  holding  that  to  be  a  defective 
affidavit,  because  tiiere  was  absolutely  no  compliance  with  the 
requirements  of  the  Act,  in  the  respect  mentioned ;  but  it  is  entirely 
another  question  whether  the  Court  is  bound  to  overlook  and  to 
consider  as  defective  every  species  of  averment  except  one  in  the 
precise  form,  as  ''  that  the  name  of  the  cause  was  so  and  so,'*  &c.f 
going  in  detail  through  all  the  statements.  For  my  own  part,! 
consider  the  decision  in  this  case,  in  the  Landed  Estates  Court,  to 
be  extremely  unsatisfactory.  What  is  required  by  the  Act  to  be 
stated  in  the  affidavit  ?  The  name  or  title  of  the  cause,  the  Court 
in  which  the  judgment  has  been  obtained,  the  date  of  the  judgm<^nt, 
and  the  names  and  the  usual  or  last-known  place  of  abode,  and  the 
title,  trade  or  profession  of  the  plaintiff  and  of  the  defendant,  and 
the  amount  of  the  debt  recovered  by  the  judgment.     Well,  in  tb^ 


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CHANCERY  REPORTS, 


1860. 
Ck.  Appeal 


In  re 
power's 

ESTATE. 


affidavit  before  us,  the  Court  is  stated  to  be  the  Exchequer ;  the 
date  of  the  judgment  to  be  the  15th  of  July  1858.  The  names  and 
description  of  the  plaintiff  and  defendant  are  sworn  to  be — [Here 
the  Lord  Chancellor  read  the  description  in  the  affidavit] — and 
JudgmmUn  the  amount  of  the  judgment  to  be  £3559*  12s.  4d.  The  question  is, 
has  the  title  of  the  cause  been  sufficiently  stated  ?  There  are  two 
different  ways  in  which  this  might  have  been  done.  One  was  by  an 
independent  substantive  averment,  that  the  name  of  the  cause  in 
which  the  judgment  was  recovered  was  so  and  so;  but  another 
method  of  averring  the  title  of  the  cause  was,  by  stating,  as 
in  the  affidavit  before  us,  that  the  judgment  in  question  was 
recovered  by  John  Taylor,  by  the'  name  and  description  of,  &c, 
against  the  defendant  in  this  cause,  by  the  name  and  descrip- 
tion of  Edward  Sandiford  Power,  of,  &c  The  affidavit,  there- 
fore, states  the  names  and  descriptions  of  the  parties  who  must 
have  been  the  parties  to  the  cause  in  which  the  judgment  was 
recovered,  and  whose  names  and  descriptions  would  have  con- 
stituted the  title  of  that  cause;  for  the  practice  is,  that  a  judgment 
is  headed  by  the  names  of  the  parties  to  the  cause  in  which  that 
judgment  was  recovered,  and  no  other  title  of  it  would  be  right. 
Therefore  the  present  is  a  fair  statement,  on  the  part  of  the  plaintifl^ 
that  the  title  of  the  cause,  in  which  the  title  sought  to  be  registered 
4iad  been  recovered,  was  *'  my  name  and  description  against  your 
name  and  description.**  It  appears  to  me  that,  without  deducing 
any  inference,  and  by  mere  reference  to  the  legal  practice,  that  that 
is  the  title  of  the  cause. 

The  next  objection  that  has  been  made  to  the  form  of  this  affl* 
davit^  I  confess  I  find  great  difficulty  in  compi^hending ;  namely, 
that  there  is  nothing  in  the  affidavit  to  identify  the  defendant  in  the 
judgment  with  the  owner  of  the  lands  sought  to  be  affected  by  the 
registration.  The  point  of  that  objection,  I  presume,  is,  that 
instead  of  saying  **  that  the  person  whose  estate  is  intended  to  be 
affected  is  seised  or  possessed,**  ^.,  the  deponent  states,  "tliat 
Edward  Sandiford  Power,  the  defendant  in  this  cause,  is  seised  or 
possessed,***  &c  Now,  it  is  to  be  observed  that  the  title  of  the 
cause,  as  set  forth  in  the  margin  of  the  affidavit,  oorresponds  with 


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the  title  of  the  eanse  in  which  tiie  judgment  was  recovered,  as 
averred  in  the  body  of  the  affidavit  Had  this  not  been  so,  there 
would  have  been  an  ambiguity,  but,  as  it  is,  there  is  none ;  the  affi- 
davit itself  shows  that  the  title  in  the  margin  was  the  title  of  the 
judgment;  and,  therefore,  "the  defendant  in  this  cause"  is  the 
same  person  as  the  defendant  in  the  judgment,  who  is  thus  identi- 
fied with  the  owner  of  the  lands  sought  to  be  affected* 

The  Judge  in  the  Landed  Estates  Court  has,  perhaps,  been  dis- 
posed to  foUow  the  decision  in  IPDowell  v.  WheaiUy  too  rigorously. 
I  think  that,  in  the  present  case,  the  affidavit  substantially  contains 
every  statement  required  by  the  Act  of  Parliament,  and  is,  there- 
fore, valid.  Accordingly,  the  decision  of  the  Court  below  must  be 
reversed,  and  this  incumbrance  held  to  be  good. 


JudgvMMU 


The  LoBD  JusTics  or  Appsal  concurred. 


In  re  the  Estate  of 

£.  M.  EDGEWORTH,  Owner  and  Appellant  i 

D.  M.  DAVIS,  Respondent. 

Noe.  18. 
This  was  an  appeal  on  behalf  of  the  owner,  against  an  order  made  An  afBdatit 
by  Judge  Dobbs,  in  the  Landed  Estates  Court,  by  which  he  had  l^^^^e  IS 
ruled  that  a  judgment  obtained  by  the  respondent  against  the  ^29^  i,  6 
appellant  in  1867,  and  subsequently  registered  by  him  as  a  mort-  Jj^^^^^^ 
gage,  under  the  provisions  of  the   13  &  14  Ffc.,  c  22,  was  an  ^7  ^«  i"^ 

incumbrance  on  the  lands  sold  in  this  matter.  ^265,  with 

£8.  2i.8d.,  for 
co«tB.     The 
record  of  the 
Mr.  Sherlock  and  Mr.  G.  O'Malley^  for  the  appellant|  contended  Jadgment 

stated  that  the 

that  the  affidavit  filed  by  the  respondent,  for  the  purpose  of  con-  aam  leooreied 

Terting  his  judgment  into  a  mortgage,  was  defective,  because  it  sides  £%  2s. 

8d.,  for  dam- 
ages, and  Xl. 
for  tejAitry.'^Hetd  that  the  above  was  not  sach  a  variance  as  woud  invalidate 
the  affidavit. 


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294  CHANCERY  REPORTS. 

1860.        stated  that  a  som    of  £3.  2  s.  8d.  had  been  recovered  for  aaU, 

>.— >>^^     whereas  the  record  of  the  judgment  stated   that  £2.  2s.  8d.  bad 
In  re  .... 

xdobwokth's  been  recovered  for  datnageSy  and  £1  for  the  costs  of  registration ; 

ESTATE*  

*       and  that  this  was  such  a  variance  as  invalidated  the  affidavit.  They 

Argument.     ^^^  j^  ^^  FiizgeraliTs  Estate  (a). 


Mr.  Brewster  and  Mr.  A.  (Sraydon^  for  the  respondent. 

It  is  sufficient  if  the  affidavit  state  the  amoutU  of  the  **  damages, 
costs,"  &c.  Here  the  sum  stated  in  the  affidavit  is  the  same  as  that 
appearing  on  the  record. 

Per  Curiam, 

Judgment,  There  is  not  any  substantial  variance  in  this  case.    The  amount 

stated  is  the  same  in  the  affidavit  and  on  the  record.  In  the 
case  of  In  re  Fitzgerald^s  Estate  the  sum  mentioned  in  the  affi- 
davit was  not  the  same  with  the  sum  appearing  on  the  record. 
The  order  of  the  Court  below  must  be  affirmed. 

(a)  Anle,  p.  278;  S.  C,  5  Ir.  Jar.,  K.  S.,  205. 


In  re  the  Estate  of 

E.  M.  EDGEWORTH,  Owner  and  Appellants 

THOMAS  R.  SMITH,  Respondent. 


JVw.12. 


In  an  affidarit  This  was  an  appeal  on  behalf  of  the  owner,  against  an  order  made  ' 

r^^istered 

under  the   13  by  Judge  Dobbs  in  the  Landed  Estates  Court,  by  which  he  had 

c.   29,  1.   (il  ruled  that  a  judgment  obtained   by  the  respondent  against  the 

"that  deponent  <^PP^ll&i^t   '^^   1857,   and   subsequently  registered   as   a  mortgage, 

^"a  «jntle^  ^*®  ^^  incumbrance  on   the  lands   sold   in   this   matter. 

man,"  was 

held  to  be  a 

wrfBdent  d^       Mr.  Sherlock,  for  the  appellant,  contended  that  the  affidavit 

cnption  of  the  rr  -» 

Elaintifi;  where  registered  by  the  respondent,  for  the  purpose  of  converting  his 
e  had  not  any 
trade   or   profession. 


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1860. 
Ch.  Appeal, 

In  re 


judgment  into  a  mortgage,  under  the  provisions  of  the  18  &  14 
Vic^  c.  29»  was  invalid^  upon  the  ground  (among  others)  that 
it  did  not  contain  a  sufficient  description  of  the  plaintiff.     The  bdobwobth'b 

affidavit  contained,  as  a  description  of  the  plaintiff,  the  following         ' 

statement,  "that  deponent  was,  and  still  is,  a  gentleman."    That      -^P«»«»<« 

is  not  a  sufficient  description  to  satisfy  the  requirements  of  the 

6th  section  of  the  Act,  which  enacts  that  the  affidavit  shall  set 

forth  *<  the  ti(le,  trade  or  profession  of  the  plaintiff."    It  cannot 

be  inferred  that  the  plaintiff  meant  to  make  averment  of  his 

title  by  stating  that  he  was  a  gentleman. 


Mr.  Lawson  and  Mr.  Cathrtw^  for  the  respondent,  were  not 
heard. 


Per  Curiam. 

It  does  not  appear  that  the  plaintiff  had  any  trade  or  profession ; 
and  in  that  case  it  is  difficult  to  conceive  how  he  could  better 
have  described  his  title  than  he  has  done.  This  affidavit  is  good, 
and  the  order  of  the  Court  below  must  be  affirmed. 


JudgwtenL 


In  re  the  Matter  of  the  Estate  of 

EDWARD  SANDIFORD  POWER,  Owner; 

FRANCIS  CARLETON  REEVES,  PeHHoner. 


Nov.  11,  12. 


This  was  an  appeal  on  behalf  of  F.  C.  Reeves,  against  an  order  The"^er  of 
made  by  Judge  Dobbs  in  the  Landed  Estates  Court,  disaUowing  i^th?llnd2d 
a  judgment  mortgage  as  an  incumbrance  ypon  the  lands  sold  in  ^hdd^'S 

this  matter.  estopped  from 

objecting, 

tiement  of  the  final  schednle  of  mcnmbrances,  to  a  claim  which  he  h^^m^j^ 
hu  affidavit  filed  a«  an  answer  to  the  conditional  order  for  sale,  to  be  a  chim«  nion 
the  estate  He  had  ahio  suffered  the  the  conditional  orderrbe^  «&,  S2S 
a  sale  to  be  had,  without  disputing  the  daim  in  question.  ^^  w-wiaw,  ma 

the  vahdity  of  a  daim,  to  which  he  has  not  hmuelf  filed  an  objection. 


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CHANCERY  EEPOETS. 


1860. 
Ch,  Jppeal 
*  ■'      y         ' 

In  r« 

foweb's 

ESTATE. 

Statement, 


In  Easter  Term  1857>  F.  C.  Beeves  obtained  a  judgment  against 
the  owner,  which  he  registered  as  a  mortgage  on  the  27th  of  April 
following.  In  1858;  F.  C.  ReeTes  filed  a  petition  in  the  Landed 
Estates  Court  for  a  sale  of  the  lands.  A  conditional  order  for  a  sale 
was  made,  and  served  on  the  oWner,  who  filed  an  affidavit  as  cause 
against  the  conditional  order,  in  which  he  stated  that  he  had  made 
arrangements  to  raise  money  to  discharge  all  the  incumbrances 
afiecting  the  lands,  including  the  debt  due  to  F.  C.  Reeves.  The 
conditional  order  was  subsequently  made  absolute,  and  registered  as 
a  lis  pendens. 

The  lands  were  sold ;  and,  on  the  settlement  of  the  final  schedule 
of  incumbrances,  the  owner  objected  to  F.  C.  Reevef  claim,  on  the 
ground  that  the  affidavits  filed  for  the  purpose  of  registering  his 
judgment  as  a  mortgage  were  defective.  Judge  Dobbs  ruled  that 
the  registration  of  Reeves'  judgment  was  invalid,  and  that  his 
claim  should  be  disallowed.  From  that  decision  F.  C.  Reeves  now 
appealed.  No  other  party  had,  on  the  settlement  of  the  schedule, 
filed  a  petition  to  Reeves'  claim ;  but  Margaret  Kirwan,  a  puisne 
incumbrancer,  had  filed  an  answer  to  Reeves'  appeal,  with  which 
she  had  been  served,  and  now  claimed  to  be  heard  in  support  of 
the  order  of  the  Court  below. 


Mr.  Brewster ^  Mr.  Warren^  and  Mr.  It.  Reeves^  for  the  appellant 
Argument.  The  owner  cannot  be  now  heard  against  this  judgment  mortgage ; 
he  should  have  taken  his  objection  in  limine.  He  has  acknow- 
ledged the  debt  in  his  affidavit  showing  cause  against  the  conditional 
order  for  a  sale,  and  he  cannot  now  turn  round  and  say  that  it  is 
not  a  debt.  He  has  even  allowed  the  conditional  order  to  be  made 
absolute,  and  a  sale  to  be  had,  without  taking  any  steps  to  stay  the 
proceedings  on  the  ground  of  the  invalidity  of  this  claim.  He  is 
now  stopped. 

Mr.  Flanagan  and  Mr.  Coxe  appeared  for  the  owner. 

The  Lord  Chancellob. 
Judgment.         ^^  ^^^^  1^0^^  ^^0  owner  concluded  by  his  own  affidavit    He 
cannot  admit  and  deny  the  same  thing ;  what  he  has  sworn  must  be 


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CHANCERY  REPORTS.  297 

taken  to  be  trne  as  against  himself.  It  is  a  most  mischievous  practice         I860* 

Ch.  AppBoL 
to  allow  a  party  who,  when  a  conditional  order  for  a  sale  has  been 


obtained,  swears  to  a  particBlar  incumbrance,  and  suffers  the  pro- 
ceedings to  go  on,  then  to  turn  round  and  say  **  oh !  this  is  not  an 
incumbrance  at  all.**  I  remember  a  case  in  the  Court  of  Exchequer,  Judgment. 
in  which  the  bill  alleged  a  certain  sum  to  be  due  on  foot  of  a  judg- 
ment, and  the  respondent  by  his  answer  admitted  that  it  was,  but 
on  taking  the  account  he  endeavoured  to  show  that  a  less  sum  was 
due ;  and  he  was  held  to  be  estopped  by  his  own  admission. 

The  Lord  Justice  of  Appeal. 

Suppose  the  party  had  endeavoured  to  impeach  the  original 
decree ;  he  could  have  done  so  only  by  a  proceeding  in  the  nature  of 
a  bill  of  review,  and  should  have  shown  that  he  had  not  known  the 
facts  upon  which  he  subsequently  relied,  and  had  not,  at  the  time, 
the  means  of  knowing  them. 

Mr.  Serjeant  Sullivan^  Mr.  P.  J,  Blake  and  Mr.  M.  Morris^  for 
Mrs.  Kirwan,  contended  that,  as  she  had  been  served  with  this  appeal 
and  had  filed  an  answer,  she  was  now  entitled  to  be  heard,  an  objec- 
tion to  the  claim  having  been  filed,  though  not  by  her. 

Mr.  Brewster, — If  Mrs.  Eirwan  intended  to  dispute  this  claim, 
she  should  have  filed  an  objection  herself.  An  incumbrancer  can- 
not take  advantage  of  an  objection  filed  by  another  party.  This 
appears  from  the  38th  of  the  General  Rules  of  the  Landed  Estates 
Court. 

Mr.  Serjeant  Sullivan, — It  would  be  a  ruinous  practice  if  it  were 
necessary  that  a  number  of  incumbrancers,  who  wished  to  dispute 
a  particular  claim,  should  be  obliged  to  file  separate  objections,  and 
not  be  allowed  to  avail  themselves  of  an  objection  filed  by  one.  It 
has  always  been  the  practice  of  the  Incumbered  Estates  Court  that 
any  incumbrancer  might  avail  himself  of  an  objection  filed  by  any 
other  incumbrancer,  which  went  to  the  ^oot  of  the  claim.  This  lady 
has  been  led  astray  by  what  is  regarded  as  the  settled  practice  of  the 
Court.  She  ought,  at  all  events,  to  be  allowed  to  file  an  objection 
nunc  pro  tunc, 

VOL.  11.  38 


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CHANCERY  REPORTS. 


Judgment* 


The  LoBB  Chahgellob. 

The  Rules  of  the  Landed  Estates  Court  are  against  Mrs.  Eirwan; 
and  if  the  practice  of  the  Court  is  in  contravention  of  the  Rules,  it 
is  wrong.  We  hold  this  judgment  mortgage  well  charged,  because 
the  only  objection  filed  was  that  of  the  owner,  and  he  is  estopped. 
No  party  can  avail  himself  of  an  objection  which  he  has  not  filed 
himself.    The  order  of  the  Court  below  must  be  reversed. 


Nov.  12. 

The  three 
months  within 
which  an   ap- 
peal   fix>m  an 
order  or  deci- 
sion  of  the 
Landed  Es- 
tates Court 
mnst     be 
entered,  in  ac- 
cordance with 
the   41st  sec- 
tion  of  the 
Landed  Es- 
tates Act  (21 
and    22   Vic., 
c  72),  are  to 
be  computed 
exdosiye  of 
the  day  of  the 
date    of  such 
order  or  deci- 
sion, and   in- 
dnsire  of  the 
day  on  which 
the  appeal  if 
entered. 


In  re  the  Estate  of  KENNEDY,  Oumer  ; 
CRUISE,  Petitioner, 

This  was  an  appeal  on  behalf  of  the  petitioner,  against  an  order 
made  by  a  Judge  of  the  Landed  Estates  Court. 

Mr.  Jf.  Morris  raised  a  preliminary  objection.  This  appeal  is 
too  late.  By  the  41st  section  of  the  Landed  Estates  Act,  an  appeal 
<<  must  be  entered  within  three  months  from  the  date  of  the  decision 
or  order."  In  this  case  the  order  bears  date  the  21st  of  June ;  the 
appeal  was  entered  on  the  21st  of  September.  It  should  have  been 
entered  on  or  before  the  20th  of  September. 

Mr.  William  Smith,  for  the  appellant. 

The  2nd  of  the  General  Orders  of  the  Court  of  Chanceiy  (1843) 
provides  '*  That  when  time  is  to  be  computed  by  days,  it  shall  be 
exclusive  of  holidays ;  and  when  it  is  to  be  computed  by  the  months 
it  shall  be  construed  calendar  month ;  and  in  all  cases  it  shall  be  ex- 
clusive of  the  first,  and  inclusive  of  the  last  day^  unless  the  last  day 
be  a  holiday,  when  the  following  day  shall  be  included." 


The  Lord  Chancsllor. 

I  apprehend  this  appeal  is  in  time. 


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CHANCERY  REPORTS.  299 


1861. 
L.  E.  Court. 


Srantielf   tt#tate#   Court 

In  the  ESTATE  of  CHARLES  HUNT, 
Owner  and  Petitioner. 


Jon.  23. 


The  question  in  this  case  arose  on  the  hearing  of  the  final  schedule  Although  a 

Judge  of  the 

of  incumbrances.    As  the  facts  appear  at  length  in  the  judgment,  it  Landed  Es- 

tates  Court 

is  onlj  necessary  to  state  that  Anne  Wallace,  whose  claim  was  No.  7  will  not  act  in 

on  the  schedule,  was  assignee  from  Miss  Anne  Pfeilitzer,  of  the  sum  but  is  bound' 
of  £1825,  moiety  of  a  charge  of  £8650;  and  which,  by  a  anal  S^*i^ch^- 
decree  in  the  cause  of  Pfeilitzer  v.  Huni^  was  declared  weU  charged  ^^J^j^^  fj 
on  the  estates  the  subject  of  the  petition  in  this  matter.     Miss  Anne  ^  ^^^^  ^ 

Wallace  became  assignee  after  the  date  of  the  final  decree.    The  point  where  it   ap- 
^  "  pears  that  the 

was  raised  by  the  Judge  himself,  who  considered  that  the  rights  of  n^bts  of 

nunors    hare 
the  minors  had  been  overlooked  in  the  Chancery  proceedings,  and  been   preju- 
diced by  such 
directed  the  case  to  be  argued  on  their  behalf.  decree,   the 

Court  wiU  re- 
tain  the  pur- 
Mr.  P.  Smythe,  for  the  minors.  ^  enSlS^^Se 

minors  to  ob- 
tain  redress  in 
Mr.  8.  Walker,  for  Miss  Anne  Wallace.  Chancery. 


Mr.  Omuby,  for  the  owner. 

LONGFIELD,  J. 

Feb.  23. 
The  facts  in  this  case  are  not  very  complicated,  and  are  all  ad-     Judgment. 

mitted,  by  all  parties,  without  any  conflict  of  evidence.     Under  the 

will  of  James  Hunt,  dated  the  24th  of  July  1819,  Charles  Hunt 

(the  owner  in  this  mattei;*),  and  his  brother  Thomas,  were  entitled, 

as  tenants  in  common,  to  the  lands  sold  in  this  matter,  subject  to 

some  life  annuities.     On  the  31st  of  December  1823,  Thomas  Hunt 

conveys  his  moiety  to  his  brother  Charles,  in  consideration  of  the 

sum  <^  £3650,  which,  however,  was  not  paid,  but  secured  by  the 


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300 


CHANCERY  REPORTS. 


1861. 
X.  E,  Court. 

In  re 
hunt's 

ESTATE. 


Judgment, 


bond  and  warrant  of  Charles,  on  which  judgment  was  entered  as  of 
Hilary  Term  1824.     It  was  clearly  intended  to  remain  as  a  lien  on 
the  estate ;  for,  on  the  1st  of  January  1824,  on  the  day  after  his  pur- 
chase from  Thpmas,  Charles  Hunt  executes  a  settlement,  on  his 
marriage  with  his  present  wife,  then  Maria  Pfeilitzer,  by  which  he 
settles  his  estates,  subject  to  the  annuities  given  by  the  will  of 
James  Hunt,  ^'  and  to  the  said  sum  of  £3650,  so  secured  by  the  said 
recited  indentures  of  lease  and  release,  of  the  30th  and  31st  days  of 
December  1823,  as  aforesaid,  and  to  the  interest  which  shall  accrue 
thereon."    The  form  of  this  settlement  is  not  unimportant.  It  vests 
the  legal  estate  in  the  trustees  on  certain  trusts,  one  of  the  earliest 
of  which  is  to  pay  the  annuities,  "  and  also  the  interest  to  accrue 
due  in  respect  of  the  said  sum  of  £3650,  so  secured  by  the  bond 
and  warrant ; "  and  after  those  trusts  the  deed  gives  an  equitable 
life  estate  to  Charles  Hunt,  with  remainder  to  his  intended  wife  and 
children.     By  another  deed,  Maria  Pfeilitzer's  property  is  settled  on 
the  wife,  then  on  the  husband,  then  on  the  children.    Maria  Pfeilit- 
zer, now  Mrs.  Hunt,  was  the  sister  of  the  petitioner  Anne  Pfeilitzer ; 
and  a  great  part  of  their  property  consisted  of  the  residuary  estate 
of  their  maternal  uncle,  Lucas  Garvey,  under  his  will,  dated  the 
24th  of  November  1812.      Mrs.  Maria  Hunt  was  administratrix 
with  this  will  annexed.    Her  husband,  Charles  Hunt,  got  possession 
of  the  assets,  and  employed  them  in  paying  off  the  charge  of  £3650, 
and  he  got  the  judgment  satisfied  on  the  roll.  .  In  this  state  of  facts, 
Miss  Anne  Pfeilitzer  filed   her  cause  petition,  by  the  amended 
prayer  of  which  she  prays  that  a  declaration  should  be  made,  that 
the  said  principal  sum  of  £3650  was  well  charged  by  the  said  inden- 
ture of  the  ^1  St  of  January  1824,  on  the  lands  comprised  therein, 
and  that  the  petitioner  was  entitled  to  one  moiety  thereof.    It  is  a 
common  equity,  where  an  estate  is  put  in  settlement  expressly  sub- 
ject to  a  charge,  if  the  tenant  for  life  pays  it,  to  keep  it  alive  for  his 
benefit ;  and,  of  course,  if  he  pays  it  out  of  assets,  then  to  keep  it 
alive  as  an  investment  of  those  assets.    Accordingly,  by  the  decree 
of  the  Lord  Chancellor,  dated  the  6th  day  of  December  1855,  it  was 
declared  that  the  said  sum  of  £3650  was  well  charged,  by  the  inden- 
ture of  the  1st  of  January  18^4,  on  the  premises  comprised  therein. 


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and  that  the  petitioner  was  entitled  to  half  that  charge,  and  the         1861. 
usual  consequential  directions  were  given  by  the  decree.     On  that 
hearing  the  infants  appeared  by  Counsel  (Mr.  Brewster  and  another), 
and  they  could  not  reasonably  complain  of  the  decree,  which  left 
them  all  that  was  settled  on  them,  viz.,  the  estate,  on  their  parents'      Judgment, 
death,  subject  to  a  charge  of  £3650,  to  be  taken  out  of  it ;  of  which 
sum,  however,  they  would  be  entitled,  under  the  settlement  of  their 
mother's  property,  to  one  moiety.     The  matter  then  was  taken  into 
the  Master's  office,  and  the  infant  defendants  did  not  appear  there 
by  Counsel ;  and  the  solicitor  informs  me  that  the  Master  directed 
that  they  should  not  appear  by  Counsel — a  sufficient  intimation  that 
their  rights  were  not  to  be  prejudiced  by  the  report  or  its  conse- 
quences.    Their  rights  were  clear,  to  get,  on  the  death  of  their 
parents,    the  estate,  or   its   value,    minus   the   charge  of   £3650. 
Accordingly,  the  other  parties  in  the  same  interest  with  the  minors 
did  not  generally  appear  before  the  Master  at  all.    There  was  some 
conflict  of  priorities  in  the  Master's  office,  and  the  report  is  made  up, 
dated*  the  18th  day  of  December  1856,  by  which  the  Master  finds 
that  all  the  mortgage  and  judgment  creditors  of  Charles  Hunt, 
between  the  date  of  the  settlement  and  the  filing  of  the  cause  peti- 
tion,  were  charges  on  the  life  estate  of  Charles  Hunt,  prior  to  the 
said  charge  of  £3650,  under  the  settlement.    I  do  not  understand 
the  grounds  of  this  report.     It  appears  to  me  that  the  interest  of  the 
sum  of  £3650  was  not  so  properly  called  a  charge  on  the  life  estate 
of  Charles  Hunt,  as  a  payment  to  be  made,  by  the  trustees,  out  of 
the  rents  and  profits  of  the  lands,  in  priority  to  Charles  Hunt's  equit- 
able life  estate.    Some  stress  was  lajd  on  the  fact  that  the  judg- 
ment had  been  satisfied.     That  does  not  appear  to  me  to  be  a  fact 
of  importance.     The  judgment  was  not  entered  up  until  after  the 
marriage  settlement,  and  was  not,  of  its  own  force,  a  charge  on  the 
inheritance.     It  was  a  charge  on  Charles  Hunt's  life  estate,  and  was 
extinguished  by  its  satisfaction ;  but  the  interest  on  the  £3650  was 
a  charge  antecedent  to  Charles  Hunt's  equitable  life  estate ;  and  I 
do  not  see  how   his  creditors,  not  having  any  legal  estate,   could 
remove  that  prior  equity,  nor  how  the  report  can  be  reconciled  with 
the  decree  declaring  the  sum  well  charged  by  the  deed  of  the  1st  of 


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1861. 
L,  E.  Court. 


Judgment. 


January  1824.  The  petitioner  Anne  Pfeilitzer  maj  be  bound 
by  that  report,  as  she  did  not  except  to  it ;  but  it  was  not  intended 
to  prejudice  the  infants,  who  were  substantially  not  permitted  to 
appear  by  Counsel  in  the  office.  The  charge  against  them  was 
only  under  the  deed  of  1824;  and  that  deed  made,  a  provision  for 
keeping  down  the  interest  during  Charles  Hunt's  lifetime ;  and  if  the 
owners  of  the  charge,  or  the  trustee  for  the  owners,  did  any  act  by 
which  they  were  precluded  from  raising  the  interest  off  the  life 
estate,  they  must  lose  that  interest  altogether.  The  right  of  the 
infants  entitled  to  the  estate  in  remainder  to  have  a  receiver,  if 
necessary,  put  over  Charles  Hunt's  life  estate,  to  keep  down  the 
interest,  or  to  compel  the  trustees  to  do  so,  was  anterior  to  any 
interest  which  Charles  Hunt,  or  his  assigns  or  creditors,  could  have 
in  the  premises.  The  cause  was  then  set  down  for  final  hearing, 
the  solicitor  for  minors  having  no  reason  to  think  that  the  decree 
could  possibly  affect  them;  and  none  of  the  other  parties  in  the 
same  interest  appearing  at  all  when  the  decree  of  the  6th  of 
February  1857  was  pronounced,  which,  I  think,  is  not  consistent 
with  the  rights  of  the  infants,  or  other  parties  entitled  in  remainder, 
or  with  the  former  decree  of  1855.  This  decree  directs  the  lands 
to  be  soldy  and  the  life  estate,  and  the  inheritance  after  the  life 
estate  (that  is,  the  reversionary  interest),  to  be  valued  respectively, 
and  that,  out  of  so  much  of  the  produce  of  the  sale  as  represents  the 
life  estate,  the  arrears  of  the  annuities,  and  the  several  charges  on 
the  life  estate,  shall  be  paid  according  to  their  priority,  and  that,  oat 
of  so  much  of  the  produce  of  the  sale  as  shall  represent  the  in- 
heritance, the  sum  of  £3650.  shall  be  paid.  I  think  the  infant 
inheritors  have  a  just  complaint  against  this  latter  clause,  of  which 
the  full  effect,  coming,  as  it  did,  by  surprise,  was  probably  not  com- 
prehended at  the  time  by  the  parties.  Its  effect  obviously  is  to  make 
the  remainderman  pay  all  the  interest  which  shall  accrue  on  the 
sum  of  £3650  from  the  time  of  the  sale,  during  the  life  of  Charles 
Hunt.  The  estate  for  life  obviously  does  not  bear  it ;  for  its  value 
is  distributed  among  Charles  Hunt's  creditors.  The  owners  of  the 
charge  do  not  lose  it ;  for,  as  they  get  the  principal  now,  that  is 


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In  re 
hunt's 

ESTATE. 


the  same  thing  as  if  the  charge  was  delayed  and  bearing  interest ; 
the  remaindermeni  therefore,  bear  the  loss.     An  example  in  figures 
will  show  this.      Suppose  the  life  estate  and  the  inheritance  in 
remainder  were  each  worth  £3650,  then,  if  the  trusts  of  the  deed 
of  1824  were  carried  fairly  out,  the  owners  of  the  inheritance  would      Judgment, 
get,  on  the  decease  of  Charles  Hunt,  the  sum  or  value  of  £7300, 
subject  to  a  charge  of  £3650 ;  that  is,  they  would  get  £3650  net, 
or,  if  the  payment  were  made  now,  the  debt  would  be  paid  out  of 
the  entire  fund,  and  the  balance  settled  so  as  to  come  to  them  at 
the  proper  time ;  or,  instead  of  the  whole  being  settled,  the  value  set 
apart  to  represent  the  inheritance  should  be  such  a  sum  as,  if  put 
out  to  compound  interest  during  the  lifetime  of  the  tenant  for  life, 
would,  according  to  the  average  duraticm  of  human  life,  accumulate 
to  the  entire  net  value  of  the  estate ;  but,  in  the  case  I  have  put,  the 
decree  would  give  the  inheritors  nothing ;  the  entire  of  the  £7300 
would  be  thus  spent.     One  sum  of  £3650  would  be  paid  to  the  cre- 
ditors of  the  life  estate,  and  another  sum  of  £3650  would  go  to  pay' 
the  charge  placed  on  the  estate  by  settlement.    I  conceive  that,  sup- 
posing the  Master's  report  to  stand,  the  decree  ought  either  to  have 
directed  the  money  that  represents  the  value  of  the  inheritance  to 
be  invested  during  the  lifetime  of  the  tenant  for  life,  and,  on  his 
decease,  the  sum  of  £3650  to  be  paid,  without  interest,  out  of  the 
accumulated  fund ;  or  it  should  have  taken  the  present  value  of  a 
sum  of  £3650,  payable  on  the  decease  of  Charles  Hunt,  and  directed 
that  sum  only  to  be  now  paid  out  of  the  fund  representing  the  inhe- 
ritance.   Either  of  these  decrees  would  be  just,  and  consistent  with 
itself.     The  existing  decree  is  inconsistent ;  for  it  deprives  the  peti- 
tioner of  all  past  interest,  and  yet  substantially  charges  all  future 
interest  against  the  reversionary  estate.    The  same  injustice  is  done 
by  throwing  ^1  the  costs  upon  the  value  of  the  reversionary  estate. 
Inasmuch,  therefore,  as  I  think  that  the  infant  defendants  were  taken 
by  surprise,  and  suffer  seriously  from  the  decree,  I  shall,  for  the 
present,  retain  the  money,  in  order  to  give  them  an  opportunity  of 
commencing  such  proceedings  as  they  may  be  advised  to  take  for 
the  purpose  of  obtaining  redress  in  Chancery.  .    If  they  cannot 


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y ^— ' 

In  re 
hunt's 

ESTATE. 
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304 


CHANCERY  REPORTS. 


succeed  in  altering  the  decree,  I  must  pay  out  the  value  of  their 
inheritance,  in  obedience  to  its  provisions.* 


*  A  motion  was  made  on  the  20th  of  April,  by  Mr.  Brewster ,  for  a  re-hearing; 
bnt,  under  the  drcnmBtances  of  the  case,  the  final  decree  having  been  made, 
and  Miss  Wallace  being  a  purchaser  after  the  making  thereof,  and  not  haying 
been  a  party  to  the  proceedings  in  Chancery,  the  Lord  Chancellor  refused  the 
motion  without  costs. 


In  the  matter  of  the  Estate  of 

Feb.25.       ^^^  Trustees  of  TIMOTHY  TURNER,  Oumers  and  Petitioners. 
March  2, 

S.  S.,  a  lessee  Xhe  absolute  order  for  sale  in  this  estate  comprised,  amongst  others, 

of  certain  pre- 

mises,  for  125  certain  premises  in  Lower  Mount*street,  in  the  city  of  Dublin,  held 

years  from  the 

25th  of  March  under  a  lease,  dated  the  21st  of  July  1787,  and  made  between  Sam- 

1782,  by  a 

lease,  dated      uel  Sproule,  of  the  one  part,  and  Edward  Heam,  of  the  other  part, 

July  1787.  and  for  the  term  of  120  years  from  the  25  th  of  March  then  last  past, 

ed  **the^'usual  *°^»  ^^*®^  ^**  ^**®»  during  the  residue  of  the  term,  at  a  yearly  rent 

teSTand  Irt  o^  ^^6.  98.  7d.,  late  currency.    The  material  facts  of  the  case  appear 

entry,  deimsg  in  the  judgment.     The  owners  insisted  that  the  premises  should  be 

^•»  ^**5^  ^^    sold  discharged  from  the  payment  of  any  rent  during  the  residue  of 

25th  of  March  ^he  term,  on  the  ground  that  S.  Sproule  having  made  the  lease, 
thenlast  past  »  6  re 

Twenty-two      without  retaining  a  reversion,  the  rent  thereby  reserved  was  not  a 
years'    arrears 

of  rent  accrued  conventional  rent ;  and,  therefore,  the  case  not  coming  within  the 
due  to  the  re- 
presentatives    principle  of  Grant  v.  ElliSt  the  right  to  recover  the  rent  was  barred 

the   last-men-  ^J  ^^^  ^^  section  of  the  Statute  of  Limitations  (a),  no  rent  having 

though   8.  8. 

had  no  reyer-        Mr.  R.  R.  Warren^  for  John  and  Phineas  Riall. 

sion  expectant 

on  the  deter-        Grant  v.  Ellis  (6)  was  decided  on  two  distinct  grounds,  either  of 

mination  of 

the  said  lease  of  the  21st  of  July  1787>  jet  that  the  rent  reserved  by  the  said  lease 

was  a  conventional  redt,  and  that,  therefore,  the  right  of  the  representatives  of  S.  9» 

to  ihe  rent  during  tiie  residue  of  the  term  was  not  barred  by  the  3  &  4  W.  4,  c.  27> 

s.2. 


(a)  3  &  4  W.  4,  c.  27. 


(6)  9M.  AW.  113. 


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which  was  sufficient  to  support  the  decision :  firstly,  that  from  the         1861. 

word  **  recover/'  in  the  statute,  the  Legislature  did  not  mean  to      *    ' 

apply  it  to  conventional  rents  of  any  kind ;  and,  secondly,  that  there 

was  no  estate  in  the  rent,  but  in  the  reversion,  in  that  case.     If  the 

first  ground  were  sufficient  to  support  the  decision,  it  is  applicable      Argument, 

to  this  case,  which  is  a  conventional  rent,  although  no  reversion 

exbts. 

He  also  cited  DcUy  v.  Bloomfield  {a)  \  Jack  v.  3PLoffhlen  (Jb) ; 
Crosbie  v.  Sugrue  (c) ;  Manning  v.  Helps  {d) ;  Shannon  v.  Hod- 
der  {e) ;  Skiel  v.  Incorporated  Society  (f).  He  also  argued  on  the 
analogy  of  tithes,  and  the  decisions  thereon,  and  cited  Dean  of  Ely 
Y.  Bliss  (ff). 


Mr.  Tuthillf  for  an  incumbrancer,  relied  on  the  case  having  been 
decided  by  James  v.  Salter  (A),  and  that  there  was  no  reversion,  and, 
therefore,  no  relation  of  landlord  and  tenant :  Pluck  v.  Digges  (t) ; 
and  that  the  estate  in  this  case  was  in  the  rent,  which  was  a  rent- 
charge,  and,  therefore,  within  the  2nd  section  of  the  Act. 

Mr.  Ince^  for  the  owners. 


DOBBS,  J. 

In  this  case,  Samuel  Sproule,  by  a  lease,  bearing  date  the  21st  of 
July  1787,  demised  certain  premises  in  the  city  of  Dublin  to  Edward 
Hearn,  to  hold  to  him,  his  executors,  administrators  and  assigns, 
from  the  25th  of  March  then  last  past,  for  the  term  of  120  yeara,  at 
a  pepper-corn. rent,  to  the  29th  of  September  1789,  and,  after  that 
date,  during  the  residue  of  the  term,  at  the  yearly  rent  of  £16. 
9s*  7d.,  Irish  currency.  The  lease  contained  a  clause  of  distress ; 
and,  if  no  sufficient  distress,  a  proviso,  in  these  words,  ^^  that  it 
should  be  lawful  for  Samuel  Sproule,  his  executors,  administrators 


March  16. 
Judgment, 


(a)  5  Ir.  Law  Bep.  65. 
(c)  9  It.  Law  Ecp.  17. 
(e)  2  Ii'.  Law  Rep.  223. 
is)  2DeG.,  BLAG.  459. 


(6)  1  Jr.  Com.  Law  Bep.  186. 
(<0  lOEx.  Bep.  59. 
(f)  lOIr.  £q.  Bep.  411. 
(A)  3  Bing.  N.  C.  544. 


(i)  5  BH.  31  ;  S.  C,  2  D.  &  C.  180. 


VOL.    11. 


39 


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^—    y      ■  ^ 

In  re 
tubnbb's 

ESTATB. 
Judgment, 


and  assigns,  into  the  premises  to  re-enter,  and  the  same  to  have 
again,  re-possess  and  enjoy,  as  in  his  or  their  first  and  former 
estate,  anything  herein  to  the  contrary  notwithstanding.*    The  lease 
also  contained  a  covenant  by  Edward  Heam  to  pay  the  rent.      The 
lessee's  interest  under  this  lease  afterwards  became  vested  in  the 
owners  in  this  matter,  and  is  now  to  be  sold  in  this  Court.     Samuel 
Sproule,  at  the,  time  he  made  the  lease  of  1787»  held  by  a  lease 
of  1782,  for  125  years  from  the  25th  of  March  1782 ;  so  that  the 
effect  of  the  lease  of  1787  was  to  leave  no  reversion  in  him.   Samuel 
Spronle's  interest  came,  by  mesne  assignment,  to  a  Miss  Roberts, 
and,  being  a  chattel,  is  now  vested  in  her  legal  personal  representa- 
tives.    It  appears  from  the  evidence,  and  is  admitted,  that  there  has 
been  no  payment  of  the  rent  of  £16.  98.  7d.  to  Miss  Roberts,  or  her 
representatives,  for  twenty-two  years  ;  and  the  parties  interested  in 
the  lessee's  estate  claim  to  hold  the  premises  during  the  residue  of 
the  term,  discharged  of  the  rent,  on  the  ground  that,  it  being  only  a 
rentcharge,  the  2nd  section  of  the  statute  3  &  4  IF.  4,  c.  27,  applies 
to  it,  and,  therefore,  is  extinguished  by  the  joint  operation  of  the 
2nd  and  34th  sections  of  that  statute.    The  lessor's  representatives 
have  filed  a  claim,  by  which  they  admit  that  Samuel  Sproule,  at  the 
time  he  made  the  lease  of  1787)  had  no  reversion ;  but,  nevertheless, 
they  claim  to  be  entitled  to  the  rent,  because,  notwithstanding  thej 
have  no  reversion,  yet  the  2nd  section  of  the  statute  is  inapplicable 
to  such  a  rent,  although  admitted  to  be  only  a  rentcharge.    Now,  if 
Samuel  Sproule  had  reserved  to  himself  a  reversion  of  but  one  day. 
It  is  clear  that  the  decision  in  Grant  v.  Ellis  would  have  been  appli- 
cable to  this  case  ;  and'  the  rent,  being  what  is  there  termed  a 
conventional  rent,  would  not  be  within  the  meaning  of  the  word 
''  rent,"  in  the  2nd  section.     On  the  other  hand,  if  it  were  a  rent- 
charge  which  Samuel  Sproule,  as  possessed  of  a  term  of  years  in 
land,  had  charged  upon  the  term  in  favour  of  a  grantee,  with  a 
power  of  distress,  such  grantee's  estate  in  the  rentcharge  would  be 
extinguished,  by  his  allowing  twenty  years  to  elapse  without  a 
payment,  or  acknowledgment  of  his  right.    James  v.  Salter^  and 
subsequent  cases,  may  be  considered  as  authorities  for  this  position. 
The  doubt  in  the  present  case  arises  from  the  circumstance  that  the 


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deed  of  1787  is  in  terms  a  demise  reserTing  rent,  in  the  words  gene- 
rally used  in,  and  applicable  to,  a  lease  where  the  relation  of  land- 
lord and  tenant  is  intended  to  subsist  immediately  on  the  execution 
of  the  instrument,  and  also  contains  a  power  of  distress  and  re-entry 
applicable  to  that  relation;  while,  from  there  being  no  reversion, 
the  relation  of  landlord  and  tenant  has  not  arisen,  and  does  not 
exist.  Pluck  V.  Digge$  declares  that,  in  construing  the  word 
•*  landlord"  in  the  statute  25  (r.  2,  c.  13  (Tr.J,  it  must  be  held  that 
a  person  who  had  no  reversion  was  not  a  landlord,  within  the 
meaning  of  the  Act,  as  there  is  not  the  relation  of  landlord  and 
tenant  without  a  reversion.  But  that  does  not  affect  the  question 
in  this  case.  Here  the  question  is,  whether  a  rent  may  not  be  such 
a  conventional  rent  as  has  been  held  not  to  be  within  the  meaning 
of  the  word  *'  rent,"*  in  the  2nd  section  of  the  last  Statute  of  Limita- 
tions, although  the  person  entitled  to  the  rent  has  no  reversion,  and 
consequently,  there  is  not,  strictly  and  technically,  the  relation  of 
landlord  and  tenant ;  and,  whether  the  rent  in  this  case  is  such  a 
conventional  rent,  I  am  of  opinion  there  may  be  such  a  conventional 
rent  without  a  reversion,  and  the  relation  implied  therefrom,  and 
that  the  rent  made  payable  by  the  deed  of  1787  is  such  a  rent. 
The  grantee  of  a  rentcharge  may  have  a  clause  of  re-entry  in  the 
instrument  creating  the  rent ;  but  the  wording  of  such  a  clause  is 
quite  different  from  the  clause  of  re-entry  in  the  deed  of  1787  ;  and 
in  leases  where  the  parties  intend  the  relation  of  landlord  and 
tenant  to  be  created  by  the  instrument.  In  the  former  cases,  the 
power  of  re-entry  is  confined  to  entering  and  holding  the  lands  until 
the  arrears  are  satisfied ;  and,  if  the  grantee  enter,  the  only  interest 
he  can  have  in  the  lands  is  a  chattel  interest  of  indeterminate  dura- 
tion, until  the  arrears  are  satisfied.  The  estate  of  the  grantor  he 
never  can  acquire;  but,  in  the  latter  cases,  the  re-entry  of  the 
lessor  is,  by  the  terms  of  the  proviso,  to  restore  him  to  his  former 
estate;  and,  if  he  enters,  he  is  in  of  and  for  his  former  estate. 
Now,  the  case  of  Doe  d.  Freeman  v.  Baieman  (a)  expressly  and 
clearly  decides  that,  where  a  termor  for  years  demises  lands  for 


1861. 
L.  E,  Court. 


Judgment. 


(a)  2  B.  ft  Aid.  168. 


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turner's 

ESTATE. 


a  term  co-ezteosive  with  his  own,  i^eserving  rent,  with  a  proviso 
for  re-entry,  he  may,  on  entry  for  condition  broken,  recover  the 
possession  of  his  former  estate  in  the  term,  although  he  has  no 
reversion.  That  is  this  case.  J.  Sproule,  or  his  assigns,  conld 
Judgment,  recover  the  possession  of  the  lands,  as  of  his  former  estate,  on 
entering  for  condition  broken.  If  so,  how  does  the  rent  in  this 
case  differ  from  the  conventional  rents  to  which  the  statute  has 
been  held  not  to  apply?  It  is  a  rent,  by  agreement  between  the 
parties,  to  be  paid  as  a  conventional  equivalent  for  the  right  of 
occupation  of  the  land ;  and,  if  not  paid,  the  party  entitled  to  it 
can  recover  the  possession  of  his  old  estate  in  the  lands.  It  is 
true  this  estate  is  not  a  reversion  ;  but  it  is  a  possibility  of  reverter, 
not  separated  from  the  right  to  recover  the  rent,  and  which  has 
exactly  the  same  capability  of  being  turned  into  the  possession 
of  the  former  estate  that  a  reversion  hits.  Such  a  rent  is,  therefore, 
in  my  opinion,  a  conventional  rent,  as  much  as  if  there  were  a 
reversion  instead  of  the  possibility  of  reverter,  and,  as  such,  is 
not  within  the  2nd  section  of  the  statute;  and  I  cannot  help 
thinking  that  Lord  St.  Leonards  had  in  his  mind  such  a  conven- 
tional rent  without  a  reversion,  when  he  used  the  words  reported  in 
p.  472  of  2  2>tf  G.,  M.  ^  (?.,  in  the  case  of  The  Dean  of  Ely  v. 
Bliu.  .  He  says : — *'  I  think  it  clear,  from  repeated  consideration 
of  it,  that  refU^  in  the  sense  in  which  it  is  spoken  of  in  the  2nd 
section^  means  rent  of  inheritance,  and  that  it  does .  not  mean 
rent  reserved  by  a  lease,  for  example,  or  rent  in  the  common  and 
ordinary  form  of  a  render  of  rent  for  property."  This  is  the  opinion, 
on  repeated  consideration,  of  the  best  and  most  experienced  real 
property  lawyer  of' the  age;  and  it  seems  to  me  plainly  to  refer 
not  only  to  rent  reserved  by  a  letoe  where  there  is  a  reversion, 
but  to  rent  generally,  when  made  payable  as  a  render  of  rent 
for  property.  The  cases  as  to  tithes,  referred  to  by  Mr.  fVarrem, 
show  that  the  operation  of  the  statute,  even  in  the  case  of  tithes 
(which,  by  force  of  the  1st  section,  are  included  {n  the  meaning 
attached  to  the  word  '*  land,"  in  the  2nd  section),  is  confined  to  cases 
where  there  are  two  parties,  each  claiming  an  adverse  estate  in 


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CHANCERY  REPORTS. 


309 


ESTATE. 


Judgment* 


the  tithes;  and  the  construction  mast  be  the  same  as  to  *' rents ;**         1861. 

and   in  the  case  before  the  Court  there  are  two  parties,   each     -^ — ^v '' 

claiming  an  adverse  estate  in  this  rent,  untied^  as  that  estate  is,  with  tubner's 
the  power,  in  the  case  of  a  breach  of  condition  for  the  non-payment 
of  the  rents,  of  recovering  possession  of  the  land  for  the  original 
estate  of  the  lessor  therein.  For  these  reasons,  I  am  of  opinion 
that  the  claim  must  be  allowed;  but,  as  the  question  is  one  of 
considerable  doubt,  and  does  not  appear  to  have  been  expressly 
decided,  and  as  it  has  arisen  by  reason  of  the  locket  of  the  person 
claiming  the  rent,  in  lying  by  for  twenty-two  years,  I  allow  the 
claim,  without  costs. 


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310  CHANCERY  REPORTS. 


1861. 
RoUs. 


SIM  V.  SIM. 


F^.  8.  9.  13,  fin  the  Rolls). 

16. 
Apnl  16. 

No  predM      In  November  1843,  the  petitioner,  Alexander  Sim,  sen.,  and  the 

sary  to-consti-  respondent,  Ale^nder  Sim,  jun.,  entered  into  partnership,  as  com- 

am^  wtU^*^  merchants.     The  terms  of  the  partnership  were,  that  the  petitioner 

partnerrfiip       ^^  ^  ^^  entitled  to  one-sixth,  and  the  respondent  to  five-sixths 

An  aoconnt  of  the  profits.     The  business  of  the  firm  was  carried  on  at  Glasgow, 
drawn   np   in 

the  handwrit-  in  Scotland,  and  at  a  place  called  Colooney-mills,  in  the  county  of 
ing  of  ono 
partner,   A,     Sligo,  in  Ireland,  until  September  1848,  when  a  new  arrangement 

%r  tL  dis-  was  entered  into,  by  which  the  petitioner  was  to  be  entitled  to 
^J^^^pJ**®  one-third  of  the  profits.  The  petitioner  alleged  that  the  new 
■ete  ^of'^ttie""  ^rangement  was  entered  into  by  way  of  concession  to  him,  in 
Sm  fth*^  ^^^^  ^  induce  him  not  to  press  for  a  dissolution  of  the  part- 
solution,  and  nership,  and  payment  of  his  share  of  the  profits.    The  respondent 

cess  of  the     alleged  that  the  arrangement  was  entered  into  as  a  favour  to  the 

assets  oyer  the 

original   capi^  ^petitioner,  who  was  about  to  be  married.    The  partnership  was 

tal,   as  repr&- 

sentmg   the     carried  on  on  the  new  terms  from  the  18th  of  September  1848 

balance  of  pro-  •  *  . 

fit  over  loss     until  the  18th  of  September  1849,  when  the   petitioner  entered 

^yiujgactions  ^^^  *  partnership  with  Andrew  Hozie.     On  the  occasion  of  the 

iMnioTO?dmwn  ^dissolution  of  the  partnership,  an  account  was  drawn  up,  and  signed 

SSrtnw,  ^  ^y  *^®  partners  on  the  l7th  of  September  1849.     On  the  same 

the    amount  ^y^  ^^  following  letters  were  written  by  the  respondent:— 
^^  ^  ^  "  Colooney,  17th  of  September  1840. 

count  A,  after       «<  Gentlemen — I  accept  of  your  offer  for  the  lease  of  Dromahair 
ciTing  credit 

for  various       mills,  &c.,  on  the  terms  mentioned  on  the  other  side ;    and,  with 
payments 

made  to  him  reference  to  my  letter  to  your  Mr.  Alexander  Sim,  jun.,  of  this 
by    his    co- 
partner, B,   after  the  dissolution,  struck  a  balance  aeainst  himself,  and  whidi 
account  was  assented  to  by  B^Held,  a  stated  and  settied  account,  Uiough  some 
debts  due  to  tiie  partnership  were  omitted  as  uncertain,      v 

A  party  seeking  to  impeach  or  surcharge  and  ftilsify  a  stated  and  setUed  account 
must  state  the  fraud  or  error  on  which  he  relies,  in  the  petition. 

If  a  partnership  be  admitted,  the  books  are  admissible  in  eyidence,  in  taking  the 
account  of  the  partnership  transactions ;  but  tiie  books  of  A  are  not  admissible 
against  B  to  prore  a  partnership,  if  it  be  denied. 


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CHANCERY  REPORTS.  311 

date,  regarding  his  interest  in  the  business  carried  on  in  my  name        1861. 

JRolU. 
here  and  at  Glasgow,  since  4th  of  November  1843,  /  hereby  agree,     > — -^ ' 

SIM 

in  consideration  of  his  said  interest  not  being  settled  vp  cU  present,  ^^ 

to  advance,  by  cash  or  by  my  acceptance,  or  otherwise,  an  amount  ^^* 

not  nnder  £2000,  as  the  same  may  be  required  by  you,  to  enable      Statement. 
you  to  carry  on  the  business  at  the  said  milL 

'*  I  am  yours,  respectfully — ^Ai^ex.  Sim." 
"  Say  £2000. 
"  Messrs.  Alex.  Sim,  jnn.,  and  Andrew  Hozie." 

"  Colooney,  17th  of  September  1849. 

"  Sir — ^I  have  this  day  placed  to  the  credit  of  your  account  in  my 
boohs  the  sum  of  £1000  sterling,  being  to  account  of  your  interest  of 
one-.sixth  in  the  business  carried  on  in  my  name  here  and  in  Glasgow, 
from  4th  of  November  1843  to  18th  of  September  1848 ;  and  your 
interest  at  one-third  in  the  same  firm,  from  18th  of  September  1848 
to  this  date.  I  engage  to  have  all  the  boohs  connected  with  the  busi- 
ness brought  tq>  and  balanced  with  the  least  possible  delay ;  and 
when  the  remaining  sum  due  you  is  ascertained,  it  will  be  placed  to 
the  credit  of  your  account.  It  is  understood  that  yon  give  every 
assistance  in  your  power  in  having  the  accounts  here  and  elsewhere 
brought  to  a  close,  and  that  you  have  no  further  interest  in  said 
business  from  this  time  henceforth. 

*'  I  am.  Sir,  your  obedient  servant — Alexander  Sim.** 

"  To  Mr.  Alex.  Sim,  jun." 

On  the  1st  of  September  1857,  a  further  account  was  drawn  up 
by  the  petitioner,  in  his  own  handwriting,  by  which  a  balance  was 
found  to  be  due  by  the  petitioner,  of  £35.  5s.  9d.  The  accounts  set 
out  the  assets  of  the  firm,  consisting  of  stock  on  hands,  debts,  &c., 
existing  at  the  date  of  the  accounts  respectively,  and  contained  a 
debtor  and  creditor  account ;  and  a  balance  was  struck.  The 
accounts  were  very  long ;  but,  for.  the  purpose  of  this  report,  the 
result  of  them  is  sufficiently  explained  in  the  judgment  of  the 
Master  (infra,  p.  312,  note),  and  in  the  judgment  of  the  Master 
OF  THE  Rolls. 

The  petition  was  filed  in  the  month  of  March  I860.  It 
prayed  for  an  account  of  the  partnership  which  was  carried  on 
from  1843  and  1849;  and  also  of  another  partnership  entered  into 


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312  CHANCERY  REPORTS. 

18Q1.        between  the  petitioner  and  the  respondent  in  1859.     It  did  not  in 
^^-v  "^     any  way  refer  to  the  accounts  of  1849  And  1859,  or  make  a  case  to 

SIM 

^^  surcharge  and  falsify  any  item  therein. 

SIM.  The  matter  having  been  referred  to  Master  Litton,  under  the 

Staiemeni.  15th  section  of  the  Chancery  Regulation  Act,  the  petitioner,  by  his 
discharge,  relied  on  the  accounts  of  1849  and  1857,  as  stated  and 
settled  accounts.  As  to  the  transaction  of  1859»  the  defence  made 
by  the  discharge  was,  that  there  was  no  partnership,  and  that  the 
petitioner  merely  acted  as  the  respondent's  agent ;  and  in  support  of 
it  produced  a  letter  written  by  the  petitioner,  on  the  3rd  day  of 
August.  The  only  evidence  of  the  partnership  produced  by  the 
petitioner  was  the  books  containing  the  trapsactions  in  respect 
of  which  the  partnership  was  alleged  to  exist. 

The  Master,  by  his  decretal  order,  dated  the  20th  of  December 
I860,  declared  that  the  petitioner  was  entitled  to  an  account  of  the 
partnership  from  its  commencement,  on  the  4th  of  November  1843 
until  its  dissolution,  on  the  18th  of  September  1849;  and  that  he 
was  also  entitled  to  an  account  of  the  dealings  and  transactions 
in  relation  to  the  limited  partnership  in  1859.* 

*The  Master  deliyered  the  following  judgment: — "The  anthorities  which 
haye  been  relied  on  by  the  respondent  (and  all  the  leading  anthorities  apon  the 
subject  have  been  dted)  quite  establish  the  propositions  upon  which  his  Counsel 
baye  relied : — 

'*  Firstly ;  yiz.,  that,  if  an  account  be  otherwise  settled,  the  resenrations  of  an  item 
or  items  for  further  arrangement  or  discussion  will  not  take  from  it  its  character 
of  finality,  or  preyent  it  from  being  considered  as  a  settled  account. 

' '  Secondly ;  that  an  account,  once  admitted,  cannot  be  opened,  on  the  ground  that 
no  party  had  adequate  means  of  ascertaining  whether  it  was  erroneous  or  not, 
without  charging  specific  acts  of  fraud. 

'*  Thirdly ;  that,  when  persons  haye  mutual  dealings,  signing  the  account  is  not 
necessary  to  make  it  a  stated  one,;  but  keeping  it  any  length  of  time,  without 
making  an  objection,  will  suiOSce. 

*<  Fourthly ;  that,  if  a  merchant  keeps  an  account  by  him  for  two  years,  without 
objection,  it  is  considered  as  a  *  stated  account. ' 

*'  The  question  then  is,  whether  the  accounts  which  haye  been  settled,  or  wbidi 
are  relied  on  as  settled  accounts  by  the  respondent,  being  the  exhibits  Nos.  1  and 
2,  come  within  these  principles,  and  whether  they  are  goyemed  by  them  ?  I  am 
of  opinion  that  they  do  not  come  within  these  principles,  and  are  not  goyemed  by 
them.  In  my  opinion  ihey  do  not  present  a  partnership  account  at  all ;  nor  do  Uiey 
afiect  to  present  a  partnership  account 

**  A  partnership  account,  purporting  to  be  a  final  settlement  between  the  part- 
ners, to  be  complete,  must  contain,  ftrrtty,  the  capital  account;  secondly,  ihe 
profit  and  loss  account;  thirdly,  the  balance  account ;  fourthly,  a  separate  aocoimt 


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CHANCERY  REPORTS.  313 

From  that  order  the  respondent  appealed.     The  statements  in  the         1861. 

Rolls. 
petition  and  discharge  are  fuUy  stated  in  the  judgment  of  the  Mas-     ^ 

SIM 

V, 

SIM. 


TEB  OF  THE  RoLLS. 

Mr.  F.  W.  Walsh  and  Mr.  Rickey^  for  the  petitioner. 

Mr.  Brewster^  Mr.  Hemphill  and  Mr.  Dowse^  for  the  respondent. 

For  the  petitioner  it  was  contended,  in  support  of  the  Master*s 
order,  that  neither  of  the  accounts  of  1849  or  1857  was  a  stated  and 
settled  account,  and  that  it  was  not  necessary,  therefore,  either  to 
notice  them  in  the  petition,  or  to  state  any  ground  for  surcharging 


for  each  of  the  partners,  showing  what  cash  and  goods  each  has  drawn  out  of  the 
•concern  daring  the  period  of  the  account.  No.  1  should  show  the  capital  in  hands 
at  starting;  No.  2  (showing  the  net  profits)  should  be  added  to  No.  1.  No.  3 
(lowing  the  net  amount  of  property,  oyer  liabilities,  at  date  of  dosing)  should  be 
preciselj  equal  to  the  amount  of  Nos.  '1  and  2.  But  the  exhibits  Nos.  1  and  2 
profoss  to  be  merely  an  abstract  of  the  balances  found  in  the  books  at  the  date  of 
dosing  the  partnership ;  therefore,  even  if  correct,  forming  only  one  ingredient  in 
the  items  of  which  a  partnership  account  must  of  necessity  be  composed.  No  such 
account  can  possibly  be  correct,  unless  thoroughly  tested  by  the  combination  of  the 
aboye-named  thret  accounts.  But,  on  referring  to  the  books,  I  find  that,  if  the 
books  are  correct,  these  exhibits  are  manifestly  and  palpably  incorrect,  differ- 
ing  widely  from  the  books,  omitting  many  balances,  and  incorrectly  quoting 
others.  Besides,  the  ledger  is  quite  in  an  unsettled  state,  showing  seyeral  large 
properties  unaccounted  for,  which,  if  properly  brought  to  a  dose,  would  greatly 
affect  the  relatiye  interests  of  the  partners. 

"  Those  accounts  amount  to  a  yeiy  large  sum ;  and  the  undosed  accounts  are  yery 
numerous.  It  is  impossible  that  justice  can  be  done  until  a  true  account  of  the 
profits  and  losses  be  made  out.  The  following  items  of  profit,  for  instance,  appear 
to  me  not  to  haye  been  accounted  for : — 

The  Indian  com  account 

Commission  account         

Consignment  p«r  "  Maria  "        , 

Sligoshop , 

Seyeral  consignments,  upwards  of 

Indian  meal  

"  In  a  correct  partnership  account,  these  profits  must  be  accounted  for  by  the  party 
through  whose  hands  they  come.  The  exhibits  Nos.  1  and  2  are  also  altogether 
defident,  in  not  containing  a  separate  personal  account,  showing  what  each  party 
has  drawn  out  of  the  concern  during  the  partnership.  These  exhibits  purport 
simply  to  show  the  excess  of  tiie  assets  oyer  the  liabilities,  and  would  seem 
intended  to  conyey  that  each  party  was  now  entitled  to  his  portion  of  that  excess ; 
but  in  fact  same  should  only  go  to  his  credit,  against  whatsoeyer  sums  he  had  pre- 
yiously  drawn  thereout ;  and  it  might  turn  out  that  he  had  drawn  in  excess  of  his 
share  of  the  profits. 

VOL.  11.  40 


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314  CHANCERY  REPORTS. 

1861.        and  falsifying  them,  as  the  rule  which  required  that  to  be  done 

V— V '     applied  only  to  stated  and  settled  accounts :  Irving  v.  Young  (a) ; 

^  and  they  relied  on  the  partnership  books  as  clearly  showing  that  a 

SIM.         partnership  existed  in  1869.    The  respondent's  Counsel  relied  on 

Argument.     ^^^  accounts  as  stated  and  settled  accounts,  and  relied  on  the  rule 

established  by  Dawson  v.  Dawson  (b) ;  Johnson  v.  Curtis  (c) ;  PiU 

V.  Cholmondely  {d)\  Gray  v.  Minnethorpe  (e)  ;  Lord  Harduneke  v. 

Vernon  (f)  ;  Drew  v.  Power  (g) ;  Stupart  v.  Arrowsmith  {h) ;  Ticket 

(a)  1  Sim.  &  St.  333.  (6)  1  Atk.  I. 

(c)  3  Br.  C.  C.  266.  (rf)  2  Ves.  5/^. 

(0  3  Ves.  107.  (J)  4  Ves.  411. 

{g)  1  Scb.  k  Lef.  182.  (A)  8  Sm.  &  0. 17a 


**  Haying  reference  to  all  these  focts,  it  is  eyident  that  exhibits  Nos.  1  and  2 
cannot  possibly  show  the  tme  position  of  either  party,  as  regards  their  respectiTe 
interests  in  the  estates;  and  that,  if  the  accounts  were  properly  closed,  and  die 
books  balanced,  the  result  would  almost  certainly  be  widely  different  from  that 
shown  in  exhibits  Nos.  1  and  2;  and,  therefore,  no  partnership  acconnts  whatsoerer, 
and  nothing  like  a  partnership  account,  has  been  taken  or  rendered.  It  follows 
that  these  exhibits  prevent  no  bar  to  the  taking  of  a  regular  partnership  aocoimt, 
and  that  it  was  not  necessary, to  point  out,  either  in  the  petition  or  in  the  diaige, 
errors,  omissions  or  mistakes,  because  the  exhibits  themselyes  do  not  even  profess 
to  present  the  account  to  which  one  partner  is  entitled  as  against  another;  and,  so 
as  settled  accounts  of  a  partnership  concern,  they  amount  to  nothing ;  nor,  as 
they  are  framed,  could  they  be  the  sabject  of  corrections,  by  reason  of  errors  or 
omissions ;  for  they  do  not  deal  with  a  partnership  account  at  all ;  nor  yet  does 
the  account  of  exhibit  No.  3.  These  yiews  refer  to  the  partnership  existing  from 
1st  of  September  1843  to  the  17th  of  September  1849;  as  to  which  the  usual  part- 
nership account  must,  in  my  opinion,  be  taken. 

'<  As  to  the  transaction  of  the  year  1850,  the  subject  of  which  was  the  caigo  by 
the  '  Egeria/ 1  am  of  opinion  that  petitioner  was  not  a  mere  agent.  I  think  the 
letters  which  passed  between  the  parties  in  relation  to  same  do,  with  the  other 
facts  and  drcumstauces  of  the  case,  go  to  establish  a  partnership  in  1859.  That 
a  large  quantity  of  white  wheat  must  haye  been  obtained,  for  the  purpose  of  mix- 
ing with  the  red  wheat,  which  was  supplied  by  the  respondent,  seems  certain;  that 
such  white  wheat  was  supplied  by  the  petitioner,  who  was  to  superintend  the 
grinding,  seems  dear.  It  is  alleged  that  the  respondent  supplied  all  the  money 
necessary  for  the  purchase  of  the  white  wheat ;  but  such  fact  is  not  made  oat. 

"Therefore,  upon  the  entire  of  the  transactions  and  correspondence,  I  haye 
arriyed  at  the  opinion  that  there  was  a  partnership  in  relation  to  the  red  and 
white  wheat  concern,  and  that  an  account  must  be  taken  accordingly.  Indeed,  if 
it  were  otherwise,  still,  as  some  account  must  be  taken  to  wind  up  the  transaction 
of  1859, 1  do  not  see  that  any  account  more  adequate  for  that  purpose  than  a 
partnership  account  could  be  taken.  As  to  the  Statute  of  Limitations,  I  do  not 
think  that  either  it,  or  the  time  which  has  elapsed,  presents  a  bar  to  the  right  to 
these  accounts.    Frame  a  decretal  order  pursuant  to  these  luiings." 


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J 


CHANCERY  REPORTS.  315 

V.  Short  (a);  Darthez  v.  Lee{b)\  Sumner  v.  Thorpe  {c);  that  it         1861. 

RolU, 
IS  necessary,  id  order  to  impeach,  to  state  m  the  bill  matter  to  snr-      ^ * 

SIM 

charge  and  falsify  them. 

SIM. 

The  Master  of  the  Rolls.  Am-ine. 

A  motion  has  been  made  in  this  cause,  on  the  part  of  the  re-  ^^^dgmwt, 
spondent,  that  the  decretal  order  of  E.  Litton,  Esq.,  the  Master  in 
this  matter,  signed  the  20th  of  December  I860,  be  set  aside,  and 
that  the  petition  be  dismissed  with  costs ;  or,  in  case  the  Court 
should  be  of  opinion  that  the  petitioner  is  entitled  to  any  relief  in 
respect  of  the  partnership  which  was  dissolved  in  1849^  that  the 
two  accounts  in  the  notice  mentioned,  dated  in  1849  and  1857, 
should  be  deemed  conclusive  between  the  petitioner  and  respondent ; 
and  that  the  accounts  in  respect  of  the  said  partnership  should  be 
limited  as  in  the  notice  of  motion  mentioned ;  and  with  respect  to 
the  limited  partnership  alleged  by  the  petitioner  to  have  been 
entered  into  between  the  petitioner  and  the  respondent  in  1859) 
the  notice  of  motion  seeks  that  the  Court  should  declare  that  no 
such  partnership  existed. 

By  the  decretal  order  of  the  Master  it  is  ordered,  first,  that 
the  petitioner  is  entitled  to  an  account  of  the  dealings  and  trans- 
actions in  relation  to  the  partnership  between  the  said  petitioner 
and  the  respondent,  which  was  entered  into  upon  the  4th  of 
November  1843,  and  was  dissolved  on  the  17th  of  September 
1849;  and  secondly,  that  the  petitioner  is  entitled  to  an  account 
of  the  dealings  and  transactions  between  the  petitioner  and  re- 
spondent, relative  to  the  limited  partnership  entered  into  between  .  * 
the  petitioner  and  the  respondent  in  the  year  1859,  in  the  cause 
petition  mentioned;  and  consequential  directions  are  then  given 
by  the  order. 

The  two  branches  of  the  case  are  quite  distinct,  and  involve 
different  considerations.  The  defence  to  the  first  branch  of  the 
case,  which  I  shall  state  more  fully  just  now,  is  that,  after  the 
partnership  between  the  petitioner  and  responden